Mo 
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TRIAL 


OF  THE 

JOURNEYMEN  CORDWAINERS 


OF  THE 

CITY  OF  NEW-YORK; 

FOR 

A  CONSPIRACY  TO  RAISE  THEIR  WAGES ; 

WITH 

THE  ARGUMENTS  OF  COUNSEL  AT  FULL  LENGTH,  ON  A 
MOTION  TO  QUASH  THE  INDICTMENT,  THE  VER¬ 
DICT  OP  THE  JURY,  AND  THE  SENTENCE 
OF  THE  COURT. 


REPORTED  BY  WILLIAM  SAMPSON,  ESQ. 

ONE  OF  THE  COUNSEL  IN  THE  CAUSE 


JYETV-YOItK. 

Printed  and  Published  by  I.  Riley  . 
1S10. 


-»  4. 


DISTRICT  OF  NEW- YORK,  ss. 

’{)E  IT  llldMEMBERED,  That  on  the  fourth  day  of  October,  in  the 
_£J?  thirty-fifth  year  of  the  Independence  of  the  United  Slates  of  Ame¬ 
rica,  isaac  Riley,  of  the  said  district,  hath  deposited  in  this  office 
the  title  of  a  book,  the  right  whereof  lie  claims  as  proprietor,  in  the 
words  following,  to  wit  : 


“  Case  of  the  Journeymen  Cordwafners  of  the  city  of  New-York  ;  with 
“  the  arguments  of  counsel  at  full  length,  on  amotion  to  quash  the  indict- 
“  ment,  the  verdict  of  the  jury,  and  the  sentence  of  the  court  Reported 
“  by  William  Sampson,  Esq.  one  of  the  counsel  in  the  cause.” 

Ix  conformity  to  the  act  of  the  Congress  of  the  United  States,  en¬ 
titled,  “  An  act  for  the  encouragement  of  learning,  by  securing  the  copies 
“  of  maps,  charts  and  books,  to  the  authors  and  proprietors  of  such  copies, 
“during  the  times  therein  mentioned;”  and  also  to  an  act,  entitled,  “An 
“act,  supplementary  to  an  act,  entitled,  an  act  for  the  encouragement  of 
“learning,  by  securing  the  copies  of  maps,  charts  and  books,  to  the  authors 
“  and  proprietors  of  such  copies,  during  the  times  therein  mentioned,  and 
“  extending  the  benefits  thereof  to  the  arts  of  designing,  engraving  and 
“  etching  historical  and  other  prints.” 

CHARLE*:  CLINTON, 

Clerk  of  the  District  of  New-York. 


'-,v.  3  y 


ADVERTISEMENT. 

THE  publisher  has  been  induced  to  procure  a  copy 
of  this  interesting  trial ,  and  offer  it  to  the  American 
public ,  as  at  once  a  useful ,  amusing  and  interesting 
work.  It  is  highly  important  to  all  Artizans  and 
Mechanics ,  as  well  employers  as  workmen ;  and 
it  is  hoped  that  it  may  be  thought  well  worthy  the 
perusal  of  the  gentlemen  of  the  bar.  Rut  neither  in 
point  of  instruction  or  amusement ,  is  it  foreign  to  any 
class  of  readers ,  as  it  will  be  found  to  contain  much 
legal  history ,  with  the  attractions  of  novelty ,  fancy 
and  humour. 

?  '  /' 


LAW  LIBRARY 


4* 


* 


CASE 


.  OF  THE 

JOURNEYMEN  CORDWAINERS 

OF  THE 

CITY  OF  NEW-YORK . 


THE  bill  was  found  at  the  court  of  general  ses¬ 
sions  of  the  peace,  holden  in  and  for  the  city  and 
county  of  New- York ,  at  the  city-hall  of  the  said  city,  in 
the  month  of  December ,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  nine,  and  filed  on  the  12th 
day  of  December ,  1809. 

Present, 

The  Hon.  De  Witt  Clinton,  "A 

Mayor  of  the  city  of  New-York  ;  f  Justices  of 

Peter  A.  Mesier,  Esq,  [  the  Sessions. 

Thomas  Carpenter,  Esq,  j 

The  indictment  being  of  great  length ,  the  following 
abstract ,  which  includes  all  the  substantial  parts  of  it , 
is  judged  sufficient  for  the  understanding  of -the  argu¬ 
ment. 

A 


LIBRARY 


2 


The  People  of  the  State  of  New-York 
against 

James  Melvin,  William  Abernathy,  Thomas  Ba¬ 
ker,  Henry  Vane,  James  Glass,  Daniel  Allen, 
John  Gibson,  Samuel  Browning,  Henry  Bogert, 
Robert  Baird,  John  Newland,  William  Co¬ 
sack,  Robert  Lambert,  Terence  Murray,  Pa¬ 
trick  McLaughlin,  James  M‘Ninch,  Wright 
McFarland,  William  Beach,  James  Read,  John 
Daly,  George  Read,  John  Morehouse,  John 
Gillen,  and  Nehemiah  Bradford. 

The  first  count  states,  that  the  defendants,  being 
workmen  and  journeymen  in  the  art,  mystery,  and 
manual  occupation  of  cordwainers,  on  the  18th  October , 
1809,  &c.  unlawfully,  perniciously  and  deceitfully  de¬ 
signing  and  intending  to  form  and  unite  themselves  into 
an  unlazvful  club  and  combination ,  and  to  make  and  or¬ 
dain  unlawful  by-laws ,  rules  and  orders  among  them¬ 
selves,  and  thereby  to  govern  themselves  and  other  work¬ 
men  in  the  said  art ,  and  unlawfully  *and  unjustly  to  ex¬ 
tort  great  sums  of  money  by  means  thereof  on  the  day 
and  year  aforesaid,  with  force  and  arms,  at,  &c.  to¬ 
gether  with  divers  other  workmen  and  journeymen  in 
the  same  art,  &c.  (whose  names  to  the  jurors  are  yet  un¬ 
known,)  did  unlawfully  assemble  and  meet  together, 
and  being  so,  &c.  did  then  and  there,  unjustly  and  cor¬ 
ruptly  conspire,  combine,  confederate  and  agree  to¬ 
gether,  that  none  of  them ,  the  said  conspirators ,  after 
the  said  18 th  October ,  would  work  for  any  master  or 
person ,  whatsoever ,  in  the  said  art ,  mystery  and  occupa¬ 
tion ,  who  should  employ  any  workman  or  journeyman ,  or 
other  person  in  the  said  art ,  not  being  a  member  of  the 


3 


said  club  or  combination ,  after  notice  given ,  &c.  to  dis¬ 
charge  such  workman,  &c.  from  the  employ  of  such 
master,  &c.  to  the  great  damage  and  oppression  not 
only  of  their  said  masters,  employing  them  in  said  art, 
&c.  but  also  of  divers  other  workmen  and  journeymen 
in  the  said  art,  mystery  and  occupation,  to  the  evil  ex¬ 
ample,  &c.  and  against  the  peace,  &c. 

2d  Count  has  the  same  general  averments,  and  states 
that  the  defendants,  designing  and  intending  to  form 
and  unite  themselves  into  an  unlawful  club  and  combina¬ 
tion-,  and  to  make  and  ordain  unlawful  and  arbitrary  by¬ 
laws,  rules  and  orders  among  themselves,  and  thereby 
to  govern  themselves  in,  (as  in  the  first  count,)  and  un¬ 
lawfully  and  unjustly  to  exact  and  extort  great  sums  of 
money  by  means  thereof,  &c.  did  unlawfully  assemble 
and  meet  together,  and  being  so  met  together,  &c.  did 
then  and  there,  unjustly,  See.  conspire,  combine,  con¬ 
federate  and  agree,  that  none  of  the  said  conspirators , 
after  the  said  day ,  &c.  would  work  for  any  master 
or  person  whatsoever ,  in  the  said  art ,  &c.  xvho  shall  em¬ 
ploy  any  workman ,  &c.  who  shall ,  thereafter ,  infringe 
or  break  any  or  either  of  the  said  unlawful  rules ,  orders 
or  by-laws.  Concluding  as  above. 

3d  Count.  That  the  defendants  conspired,  &c.  not 
to  work  for  any  master  or  person  who  should  employ  any 
workman ,  &c.  who  should  break  any  of  their  biy-laws , 
unless  such  workman ,  &c.  should  pay  to  the  club  such 
sum  as  should  be  agreed  on ,  as  a  penalty  for  the  breach 
of  such  unlawful  rules ,  orders  or  by-laws ,  and  that  they 
did ,  in  pursuance  of  the  said  conspiracy ,  refuse  to  work 
and  labour  for  fames  Corwin  and  Charles  Aimes ,  because 
they ,  C.  and  A.  did  Employ  one  Edward  Whit  ess,  a  cord- 
wainer ,  ( alleging  that  the  said  E .  TV.  had  broken  one  of 


such  rules  and  orders,  and  refused  to  pay  2  dollars ,  &c. 
as  a  penalty  for  breaking  such  rules  and  orders ,)  and  con¬ 
tinued  in  refusing  to  work ,  Sec.  for  C.  and  A.  until  the 
said  C.  and  A.  discharged  the  said  E.  TV.  &c.  Sec. 

4th  Count.  That  they  (the  defendants)  wickedly ,  and 
intending  unjustly,  unlawfully,  and  by  indirect  means, 
to  impoverish  the  said  Edward  Wliitess,  and  hinder  him 
from  folloxving  his  trade ,  did  confederate ,  conspire,  See. 
by  -wrongful  and  indirect  means ,  to  impoverish  the  said 
E.  IV.  and  to  deprive  and  hinder  him  from  following  his 
said  art ,  Sec.  and  that  they,  according  to  the  said  un¬ 
lawful,  Sec.  conspiracy,  Sec.  indirectly,  unlawfully,  Sec. 
did  prevent,  Sec.  the  said  E.  TV.  from  following  his  said 
art.  Sec.  and  did  greatly  impoverish  him. 

5th  Count.  That  the  defendants  did  conspire  and 
agree,  by  indirect  means ,  to  prejudice  and  impoverish  the 
said  E.  TV.  and  prevent  him  from  exercising  his  trade. 

6th  Count.  That  the  defendants,  not  being  content  to 
work  at  the  usual  rates  and  prices  for  which  they 
and  other  workmen  and  journeymen  were  wont  and  ac¬ 
customed  to  work,  but  falsely  and  fraudulently  con¬ 
spiring,  unjustly  and  oppressively  to  augment  the  wages 
of  themselves  and  the  other  workmen,  Sec.  and  unjustly 
to  exact  and  extort  great  sums  of  money  for  their  la¬ 
bour  and  hire  in  the  said  art,  mystery.  Sec.  and  did 
meet,  Sec.  and  being  so  met,  Sec.  did  unjustly  and  cor¬ 
ruptly  conspire,  &.c.  that  none  of  them  should,  after  the 
said  1 8th  October,  work  at  any  lower  rate  than 
S3  75  for  making  every  pair  of  back-strapped  boots, 

2  00  Suwarrow  laced  boots,  full  clammed, 

1  75  for  laced  boots  in  front, 

2  37  1-2  for  footing  back-strap  boots, 

3  25  for  footing  Suwarrows, 

1  25  for  bottoming  old  boots, 


I 


5 

On  account  of  any  master  or  employer,  to  the  great  da¬ 
mage  not  only  of  their  said  masters,  &c.  but  of  divers 
other  citizens,  &c. 

7th  Count.  That  the  defendants  falsely  and  fraudu¬ 
lently  conspired,  &c.  unjustly  and  oppressively  to  in¬ 
crease  and  augment  the  wages  of  themselves  and  other 
' workmen ,  &c.  and  unjustly  to  exact  and  extort  great 
sums  for  their  labour  and  hire ,  &c.  from  their  masters 
who  employ  them ,  did  assemble ,  and  being  so  assembled , 
did  conspire ,  &c.  that  they ,  and  each  of  them ,  &c.  would 
endeavour  to  prevent ,  by  threats ,  and  other  unlawful 
means ,  other  artificers,  &c.  in  the  said  art ,  &c.  from 
working ,  &c.  at  any  loxver  rate  than ,  &c.  (setting  out  the 
prices  in  the  preceding  count,  and  concluding  likewise.) 

8th  Count  states  the  design  to  form  themselves  into  a 
club,  as  in  the  three  first  counts,  and  to  assemble  unlaw¬ 
fully,  and  that  they  did  assemble,  and  being  so  assem¬ 
bled,  conspired  and  agreed,  that  none  of  them  should 
work  for  any  master  who  should  have  more  than  two 
apprentices ,  to  learn  the  said  art ,  at  one  and  the  same  time. 

9th  Count  charges  a  conspiracy,  by  indirect  means  to 
prejudice  and  impoverish  the  following  persons,  who  are 
all  master  shoemakers,  and  prosecutors  of  the  indict¬ 
ment  : 

Israel  Haviland ,  John  Mills ,  Timothy  Wood ,  John 
Peshine ,  Oliver  H.  Taylor ,  William  Troxvd ,  Isaac  Mi - 
nard ,  Samuel  Mabbatt ,  Thomas  Lexvis ,  James  Corwin , 
John  I.  Vanderpool ,  Christian  Covenhoven ,  William  Kid¬ 
ney ,  Thomas  Benton ,  David  Law ,  jun.  Abraham  Mer- 
ril,  Charles  Lee ,  Thomas  M'-Kinley ,  James  Jarvis , 
Charles  Aimes ,  William  Benton ,  and  Pe/rr  P.  Sprain - 
ger. 


6 


Saturday ,  December  16. 

The  defendants,  being  in  court,  pursuant  to  their  re¬ 
cognisances,  were  called  upon  to  plead.  Sampson ,  on 
their  behalf,  asked  leave  to  peruse  the  bill,  which  was 
granted.  After  a  short  consultation  with  Golden ,  also 
of  counsel  for  the  defendants,  he  gave  intimation  that 
they  should  move  the  court  to  quash  the  indictment. 
The  day  being  far  advanced,  Monday  morning  was  ap¬ 
pointed  for  the  hearing  of  the  motion. 

Monday ,  December  18. 

This  day  Sampson  opened  the  motion,  as  follows  : — 

May  it  please  this  honourable  court.  The  indictment 
we  now  move  to  have  quashed  contains  nine  distinct 
counts,  each  affecting  to  charge  the  defendants  with  a 
substantive  crime  of  conspiracy ;  yet  we  maintain,  that, 
taken  in  the  entire,  it  contains  nothing  to  which  we 
should  be  put  to  answer,  either  in  law  or  fact.  And  we 
appeal  to  the  discretionary  power  of  the  court,  to  save  us 
from  the  hardship  of  pleading  or  demurring  to  facts, 
which,  though  proved,  or  admitted,  could  produce  no 
legal  result. 

We  understand,  from  the  counsel  for  the  prosecution, 
that  they  mean  to  support  the  indictment,  without  re¬ 
ference  to  any  statute,  but  abstractedly  upon  the  princi¬ 
ples  of  the  common  law.  On  the  other  hand  our  posi¬ 
tions  are  these  : 

That  by  the  common  law,  in  England,  such  com¬ 
binations  were  never  held  to  be  conspiracies. 

That  even  though  they  had  been,  they  never  were  so  in 
this  country,  either  by  statute  or  common  law. 

3 


1 


That  in  England  such  indictments  lie  only  in  virtue 
of  the  statutes  regulating  the  wages  and  labour  of  the 
workmen,  called  Statutes  of  Labourers. 

That  such  statutes  were  never  in  force  in  the  United 
States  of  America ,  not  when  they  were  colonies,  and 
certainly  not  since. 

That  the  crime  of  conspiracy  is  defined  by  a  statute 
declaratory  of  the  common  law,  as  well  in  this  state  as 
in  England ,  and  that  under  that  definition,  no  such  in¬ 
dictment  as  the  present  can  be  maintained. 

That  negative  usage,  from  the  first  settlement  of  this 
country  to  the  present  time,  is  sufficient  evidence  to 
show,  that  the  law  never  authorised  such  a  proceeding. 

The  definition  alluded  to  is  entitled  “  A  Defnition  of  - 
Conspirators and  takes  in  the  three  kindred  offences 
of  conspiracy,  champerty,  and  maintenance,  which  make 
a  common  tide  in  all  the  ancient  books,  all  partaking  of 
the  same  nature,  and  punished  as  crimina  falsi,  with  the 
villanous  judgment. 

The  English  statute  is  in  these  tvords  :  “  Who  be 
conspirators  and  who  be  champertors  :f  Conspirators  be 
they  who  do  confederate,  or  bind  themselves,  by  oath, 
covenant,  or  other  alliance,  that  every  of  them  shall  aid 
and  bear  the  other  falsely  and  maliciously ,  to  indite,  (2) 
or  falsely  to  maintain  pleas  ;  (3)  and  such  as  cause 
children  within  age  to  appeal  men  of  felony,  whereby 
they  are  imprisoned,  or  sore  grieved  ;  (4)  and  such  as 
retain  men  in  the  country,  with  liveries  or  fees,  for  to 
maintain  their  malicious  enterprises  ;  and  this  extend- 
eth  as  well  to  the  takers  as  the  givers.  (5)  And  stewards 
and  bailiffs  of  great  lords,  which,  by  their  seigniory,  of- 

•  33  Edtv.  I.  slat.  2.  an.  dom.  1304.  |  Vid.Keble,  stat.  n.  GO. 


8 


fice,  or  power,  undertake  to  hear  or  maintain  quarrels, 
pleas  or  debates,  that  concern  other  parties  than  such 
as  touch  the  estates  of  their  lords,  or  themselves.(6) 
This  jinal  ordinance  and  definition  of  conspiracy ,  was 
made  and  accorded  by  the  king  and  his  council,  in  his 
parliament,  the  33d  year  of  his  reign. 

(7)  And  it  was  further  ordained,  that  justices  assign¬ 
ed  to  the  hearing  and  determining  of  felonies  and  tres¬ 
pass,  should  have  transcript  thereof. 

(8)  Champertors  be  they  that  move  pleas  and  suits,  or 
cause  to  be  moved,  either  by  their  own  procurement,  or 
by  others,  and  sue  them  at  their  proper  costs,  for  to 
have  part  of  the  land  at  variance,  or  part  of  the  gains.” 

It  appears  from  the  7th  section,  that  this  definition 
applied  as  well  to  criminal  prosecutions  as  to  civil.  It 
was,  therefore,  the  universal  definition  of  conspirators 
and  conspiracy. 

Immediately  after  follows  dm  statute  of  champerty, 
restraining  pleaders,  attorneys,  bailiffs  of  great  men, 
&c.  from  corrupt  bargains  and  oppressive  acts,  of  which 
the  fourth  section  is  in  these  words  : 

“  (4)  Our  lord  the  king,  at  the  information  of  Gilbert 
Roxvberrij ,  clerk  of  the  council,  hath  commanded,  that 
whoever  will  complain  himself  of  conspirators ,  inventors 
and  maintainers  of  false  quarrels ,  and  partakers  thereof 
and  brokers  of  debates ,  that  Gilbert  Thornton  shall  cause 
them  to  be  attached  by  his  writ ;  and  that  they  be  before 
our  sovereign  lord  the  king,  to  answer  unto  the  plain¬ 
tiffs  by  this  writ  following  :  Rex  vie  salutem ,  &c. 

From  this  it  appears  how  far  those  have  straggled 
from  the  common  law  principles,  who  have  supposed, 
that  a  combination  of  men,  to  regulate  their  immediate 
and  proper  interests,  was  included  in  that  odious  accu¬ 
sation  bv  the  common  law. 


9 


The  earlier  statutes  made  in  pari  materia ,  antecedent 
to  this  final  definition  of  what  should  and  should  not 
be  conspiracy,  all  warrant  the  same  principle,  and  all 
turn  upon  falsehood,  oppression  by  false  charges,  or  cor¬ 
ruptly  meddling  with  concerns  not  their  own :  for  in¬ 
stance  : 

“  None  shall  commit  champerty  for  to  have  the  thing  in 
question.”* 

This  title  is  sufficiently  explanatory. 

“  Penalty  for  buying  the  title  of  lands  depending  in 
suit.”  f 

This  was  to  prevent  the  chancellor,  treasurer,  justices, 
great  lords  of  the  king’s  council,  and  such  as  had  power, 
from  taking  churches,  advowsons  of  church  lands,  and 
other  bribes,  for  the  corrupt  abuse  of  their  power,  and. 
perversion  of  law  and  justice. 

“  The  remedy  against  conspirators ,  false  informers , 
and  embracers  of  juries .’’j: 

This  empowered  justices  of  assises  to  take  inquest 
without  writ,  and  do  justice  without  delay,  upon  conspi¬ 
rators ,  false  informers ,  and  evil  procurers ,  of  dozens, 
assises,  inquests,  and  juries. 

And  next  is  that  final  definition,  already  cited,  of 
which  Lord  Coke  speaks  in  these  terms. 

|  “  This,  which  was  in  truth  the  21  Edw.  III.  is  enti¬ 
tled  a  definition  of  conspiracy,  and  is  in  affirmance  of  the 
common  laiv.”§ 

The  counsel  opposed  to  us  are  able  counsel,  and  can 
do  much  ;  but  to  bring  the  case  of  the  journeymen  cord- 

*3Edvj.  I.C..15.  1 13  Edw.  I.  c.  49.  $  22  Ediv.  I.  c.  It.  §2/rcsf.5G2. 


B 


10 


wainers  of  New-York  within  this  definition  of  conspira¬ 
cy,  upon  the  principles  of  the  common  law,  I  think  is 
more  than  they  can  do. 

But  what  will  they  say  when  I  read  to  them  a  similar 
definition  by  a  statute  of  our  own,  made  with  a  full  view 
of  all  the  English  cases  and  statutes  from  the  time  of 
Edward  I.  and  before  it,  where  our  legislators,  after 
weighing  them  all,  thought  the  best  thing  they  could 
do  was  to  go  back  to  the  old  common  law  definition, 
and  re-enact  it  ;  and  thereby  get  rid  at  once  of  all 
the  bad  precedents  with  which  the  English  books 
abound.* 

The  declaratory  statute  of  New-York  is,  as  close  as 
circumstances  would  permit,  a  transcript  of  the  English 
final  definition,  “  Reddendo  singula  singulis it  is  the 
same  law.  It  only  omits  what  respects  great  lords,  and  their 
men  in  livery,  and  such  other  mischiefs  as  were  suppo¬ 
sed  for  ever  banished  from  this  land.  I  leave  this  statute 
open  for  the  perusal  of  the  gentlemen,  with  this  one  re¬ 
mark,  that,  when  all  the  English  statutes  were  repealed 
in  mass,  this  protecting  law  was  adopted  and  enacted. 

It  is  scarcely  more  necessary  to  say,  that  a  definition  of 
what  shall  be  conspiracy  is  a  declaration  of  what  shall 
not  be  so,  than  that  the  line  of  circumference  shows  as 
well  what  is  contained  within  a  circle  as  what  falls  with¬ 
out  it.  The  acts  here  charged  fall  without,  and  not  with¬ 
in,  the  definition. 

We  have,  therefore,  for  our  maxim,  that,  uhi  nulla  lex , 
ibi  nulla  transgressio.  W e  have  also  for  us  a  definition, 
from  high  authority,  of  crimes  and  misdemeanors. 


Laus  JV*.  F.  v.  t.  p.  343.  sess.  24.  c.  S'. 


11 


“  A  crime  or  misdemeanor,”  says  Sir  William  Black- 
stone,  “  is  an  act  committed,  or  omitted,  in  violation  of 
some  public  law,  either  forbidding  or  commanding  it.”* 
Let  me  then  ask,  where  is  the  public  law  that  prohibits  any¬ 
thing,  or  commands  any  thing,  which  these  defendants 
are  charged  with  having  committed  or  omitted  ?  The 
silence  of  our  statutes,  the  silence  of  our  records,  shows 
that  there  is  none ;  and  the  definition  in  affirmance  of 
the  common  law,  shows  that  there  could  be  none  ;  and 
that  even  in  England ,  there  never  was  any  other  than  those 
statutes  of  labourers,  which  it  is  not  pretended  ever  were 
of  force  in  this  country,  and  which  are  all  repealed  if 
they  ever  had  been  in  force  here. 

Yet  from  the  frequent  recurrence  of  those  statutes  in 
the  English  law  books,  and  of  the  cases  growing  out 
of  them,  has  all  the  fallacy  arisen.  By  too  great  fami¬ 
liarity  with  foreign  law  books,  and  too  little  attention  to 
our  own  constitution  and  laws,  we  are  often  led  into  er¬ 
ror,  not  considering  how  unsuitable  these  foreign  laws 
may  be  to  our  condition.  For  instance  :  the  English 
code  and  constitution  are  built  upon  the  inequality  of 
condition  in  the  inhabitants.  Here  all  are  in  one  degree, 
that  of  citizens  ;  and  all  equal  in  their  rights.  There 
are  many  laws  in  England  which  can  only  be  executed 
upon  those  not  favoured  by  fortune  with  certain 
privileges ;  some  operating  entirely  against  the  poor. 
There  one  man  is  sovereign,  and  all  others  his  subjects. 
Here  no  man  is  subject,  and  no  man  lord  or  master. 
Why  should  we,  then,  take  lessons  of  prosperity  or  feli¬ 
city  from  other  countries.  If  they  do  not  take  them 
from  us,  let  us  at  least  remain  contented  with  our  own  in- 


*  4  Com.  s. 


12 


stitutions,  and  wean  our  affections  from  such  as  are  of 
no  kin  nor  profit  to  us. 

But  how  strangely  are  men  the  creatures  of  education 
and  habit.  At  the  same  time  that  we  have  shaken  off 
the  supremacy  of  the  English  law,  we  imbibe  its  errors 
with  our  mother’s  milk.  And  the  remarks  of  the  pro¬ 
found  and  perspicacious  Adam  Smith ,  are  realized  here 
as  in  Great  Britain.  There,  he  observes,  the  master 
tradesmen  are  in  permanent  conspiracy  against  the  work¬ 
men  ;  so  much  so,  that  it  passes  unobserved  as  the  na¬ 
tural  course  of  things,  which  challenges  no  attention. 
Even  so  we  see  it  here.  These  masters  enter  without 
fear  into  a  sordid  combination  to  oppress  the  journey¬ 
men  ;  and  if  the  workmen  meet  in  opposition  to  them, 
they  forthwith  sound  the  alarm,  and  spread  the  cry  of 
treason  and  conspiracy. 

The  difference,  however,  is,  that  in  England  there  are 
statutes  to  warrant  such  prosecutions.  Here  there  never 
were  any  such.  There,  there  are  precedents  :  here,  there 
are  none.  But  those  precedents  in  England  are  not 
founded  on  the  common  law,  but  by  statute,  and  in 
counteraction  of  it  :  and  the  proof  is,  that  not  one  such 
case  is  to  be  found  in  any  book  of  reports,  treatise,  abridg¬ 
ment  or  tables,  till  the  passing  of  the  statutes  of  labour¬ 
ers,  which  gave  rise  to  them  ;  and  the  first  of  Avhich  was 
in  the  reign  of  Edw.  III.  And  I  call  upon  my  adversa¬ 
ry,  that  great  legal  antiquarian,  my  learned  countryman, 
who  lives  amongst  the  old  fathers  of  the  law,  who  es¬ 
tranges  himself  from  his  friends,  his  wrife,  and  lawfully 
begotten  children,  to  haunt  with  such  musty  companions. 

I  call  upon  him  who  spends  his  mornings  with  Sir  George 
C'rohe,  and  Sir  Harbottle  Grimstone ,  and  his  evenings 
with  the  Mirror  of  Justice ,  and  Javaise  of  Tilbury ,  to 


13 


tell  me  of  any  case  of  this  nature  prior  to  those  statutes. 
If  he  cannot  show  when  it  was  attempted,  then  it  never 
was  attempted.  I  challenge  him  now  to  do  it,  and  I  put 
the  issue  of  this  motion  on  the  chance. 

And  what  were  those  statutes  out  of  which  these  pro¬ 
secutions  grew  ?  They  were  the  lineal  descendants,  the 
lawful  and  immediate  issue,  'of  pestilence  and  public  ca¬ 
lamity,  and  they  do  not  hide  their  origin ;  for  by  them, 
and  their  consequences,  the  most  useful  class  in  England 
is  rendered  the  most  miserable,  and  grows  poor  as  its 
oppressors  grow  rich.  Throughout  the  habitable  word, 
luxury,  vanity,  and  even  fancy,  is  satiated  by  the  pro¬ 
ductions  of  their  industry  ;  but,  like  the  worm  that  spins 
its  bowels,  and  perishes  in  the  act,  so  they  whose  hands 
impart  to  the  tissue  its  lustre  and  its  hue,  to  flatter  the  vo¬ 
luptuous  and  the  gay,  pine  themselves  and  decay  in  ob¬ 
scurity  and  want.  And  a  late  tourist  has  too  justly  re¬ 
marked,  that,  from  poverty  and  pain,  the  workmen  in 
certain  manufacturing  towns  in  England ,  exhibit  the 
strange  phenomena  of  green  hair  and  red  eyes!* 

It  is  these  statutes,  and  the  prosecutions  grounded  on 
them,  that  drive  the  artizan  to  emigrate  as  often  as  he 
can  escape  from  the  laws  which  make  his  country  his 
prison,  and  has  intelligence  enough  to  know  that  there 
is  a  better.  It  is  owing  to  that  system,  that,  in  a  nation 
expending  thirteen  millions  sterling  yearly  upon  instru¬ 
ments  for  the  destruction  of  men,  one  million  out  of  nine 
are  beggars  receiving  alms  !  ! !  And  are  these  the  bene¬ 
fits  the  prosecutors  are  now,  for  the  first  time,  about  to 
visit  upon  our  happy  community  ? 

Mr.  Reeves  in  his  valuable  history  of  the  English  law, 
thus  introduces  these  statutes  : 


Espriellu’s  Letters. 


u 


“  The  next  parliamentary  regulation  relating  to  the 
clergy,  was  statute  36  Edzu.  III.  stat.  1 1.  c.  28.  which  was 
occasioned  by  the  late  plague  that  had  depopulated  the 
church  as  well  as  the  laity.  The  priests  having  from 
thence  taken  occasion  to  make  high  demands  for  their 
services,  certain  limits  were  fixed  by  statute  for  the  at¬ 
tendance  of  parish  and  other  priests.”* 

He  then  passes  from  the  priests  to  the  labourers,  who, 
it  seems,  were  no  better  after  the  plague  than  the 
priests.  “  This  public  calamity  having  thinned  the  lower 
classes  of  the  people,  servants  and  labourers  took  occa¬ 
sion  to  demand  very  extravagant  wages.  An  ordinance 
was  therefore  made  by  the  king  and  council,  to  whom  it 
was  thought  properly  to  belong,  as  an  article  of  police 
and  internal  regulation,  especially  as  the  parliament  were 
prevented  from  sitting  by  the  violence  of  the  plague. 
This  ordinance  was  afterwards  made  an  act  of  parliament, 
and  constitutes  the  statute  23  Edw.  III. 

Mr.  Reeves  then  concludes  with  this  remark  :  “  The 
contents  of  this  statute  are  worthy  of  notice,  as  they  are 
the  frst  provisions  of  the  sort ,  and  the  foundation  of  the 
system  to  which  the  community  were  subject  for  many 
years  after.’’'’ 

Thus,  whether  we  judge  of  these  statutes  by  their  ori¬ 
gin  or  their  effects,  they  may  be  useful  lessons  to  warn  us 
from  the  adoption  of  similar  wickedness  and  folly. 
The  sequel  will  show  how  one  false  principle  generates 
a  multitude  of  others.  “  Because  it  was  found,”  adds 
the  author,  “  that  people  would  not  sue  for  the  forfeiture 
against  servants  and  workmen  taking  more  than  the 
above-mentioned  wages,  it  was  afterwards  ordained, 


Reeves's  Hist.  Eng.  Law,  r.  2.  p.  387. 


15 


that  such  forfeiture  should  be  assessed  by  the  king’s  ojji- 
cers .”*  The  moral  then  is  this  :  the  latvs  were  oppres¬ 
sive  :  the  people  revolted  against  them  :  and  arbitrary 
courses  were  invented  to  enforce  them  ! 

“  In  the  25th  year  of  the  king,  the  commons  complain¬ 
ed,  in  parliament,  that  the  above  ordinance  was  not  ob¬ 
served,  wherefore  a  statute  was  made  ordaining  further 
regulations  on  the  subject.  It  was  enacted,  that  carters, 
ploughmen,  and  other  servants,  should  be  allowed  to 
serve  by  the  year,  or  by  some  other  usual  term  ;  and  not 
by  the  day.  All  workmen  to  bring  their  implements 
openly  into  town,  and  there  be  hired  in  a  common  place, 
and  by  no  means  in  a  secret  one.  Certain  prices  were 
fixed  for  a  day’s  work  of  mowers,  reapers,  and  others. 
Servants  to  be  sworn  twice  a  year,  before  the  lords, 
bailiffs,  stewards,  and  constables  of  every  town.  And 
those  who  refused  to  take  such  oaths,  to  perform  the 
work  they  engaged  for,  were  to  be  put  in  the  stocks,  by 
the  above  officers,  for  three  days  or  more,  or  to  be  sent 
to  the  next  gaol,  there  to  remain  till  they  would  justify 
themselves-” 

“  Artificers  who  absented  themselves  from  their  work 
were  to  be  branded  with  a  hot  iron  on  the  forehead,  with 
the  mark  of  the  letter  F.  to  denote  the  falsity  they  had 
been  guilty  of  in  breaking  the  oath  by  which  they  had 
bound  themselves,  according  to  the  former  statute  to 
serve.”f 

Were  the  gentlemen  aware  of  this  history  when  they 
brought  forward  this  prosecution  ?  Would  they  intro¬ 
duce  into  this  country,  any  part  of  a  system,  under  which 
men  were  baited  like  wild  beasts  ,*  their  limbs  put  in  the 


Reeves's  Hist.  Enff.  Lait>}  v.  2.  p.  39fi. 


t  34  Ed;i\  IIT.  c.  16. 


16 


stocks  ;  their  souls  put  to  the  torture,  that  they  might  be 
forced  to  swear  against  their  interest  and  their  conviction, 
on  pain  of  branding,  dungeoning,  pilloring,  ear-cutting, 
and  nose-slitting.  Much  better  did  those  lawgivers  them¬ 
selves  deserve  branding  with  the  letter  F.  for  making 
such  laws.  If  perjury  was  committed,  it  was  they  who 
were  guilty,  and  deserved  to  suffer  for  it,  for,  in  such 
case, 


“  ’Tis  he  who  makes  the  oath  that  breaks  it, 

Not  he  that  from  compulsion  takes  it.” 

Further:  “  A  servant,  labourer,  or  artificer,  who  had 
absented  himself,  might  be  demanded  by  the  mayor  or 
bailiffs  of  the  place.  If  they  refused  to  deliver  him  up, 
they  might  go  before  the  justices  of  labourers.  This  was 
to  prevent  such  fugitives  from  being  harboured,  and  to 
interest  all  persons  in  the  execution  of  this  statute.” 

So  here  we  find,  that  neither  the  secresy  of  retreat, 
the  charity  of  his  fellow-creatures,  nor  the  benignity  of 
the  magistracy,  was  a  refuge  to  the  victim,  against  the 
cruelty  of  his  pursuers. 

“  In  the  following  reign,”  continues  the  author,  “  these 
statutes  were  confirmed  with  additions.  The  lower  orders 
of  people  were,  in  consideration  of  law,  servants,  la¬ 
bourers,  artificers,  and  beggars.”*  This  classification  is 
surely  not  American  ! 

“  It  was  now  enacted,  that  no  servant,  either  man  or 
woman,  should  depart  at  the  end  of  his  service,  out  of 
the  hundred,  rape,  or  wapentake,  where  he  dwelt,  to 
serve  or  dwell  elsewhere,  unless  he  brought  a  letter  pa- 

*  "5+  Eiko.  HI.  r.  3.  p.  169.  12  Rich.  II.  c.  3.  called  slat,  of  Canterbury 


17 


tent ,  containing  the  cause  of  his  going  or  the  time  of  his 
return,  under  the  king’s  seal.  Persons  harbouring  such 
wanderer,  not  having  a  letter,  were  to  be  fined  by  the 
justices  if  they  harbour  him  more  than  one  night.” 

“  And,  to  prevent  disorders,  it  was  ordained,  that  no 
servant,  labourer,  or  artificer,  should  carry  a  sword,  ex¬ 
cept  in  time  of  war,  or  when  travelling  with  his  master  ; 
but  they  might  have  bows  and  arrows,  and  use  them  on 
Sundays  and  holidays.  And  they  were  required  to  leave 
all  playing  at  tennis  or  foot-ball,  or  other  games  called 
quoits,  dice,  casting  of  the  stone  kails,  and  other  such 
importune  games.  This  is  the  first  statute  that  prohibi¬ 
ted  any  sort  of  games  or  diversions.” 

“  In  the  time  of  Henry  IV.  it  was  complained,  that 
notwithstanding  the  statute  of  Canterbury ,  ordaining  that 
no  person  who  worked  in  husbandry  till  twelve  years  of 
age  should  be  permitted  to  be  put  to  any  mystery  or 
handicraft,  yet  the  children  of  many  persons,  having  no 
land  or  rent,  were  bound  apprentices  to  crafts,  in  towns 
and  boroughs,  for  the  pride  of  clothing,  and  other  evil 
customs  that  servants  do  use  within  the  same.  To  prevent 
which,  none  should  put  his  son  or  daughter  apprentice 
to  any  craft  or  labour  within  a  city  or  borough,  except 
he  had  land  or  rent  to  the  value  of  twenty  shillings  per 
annum,  at  least,  but  he  should  put  them  to  other  labour, 
as  his  estate  required,  on  pain  of  one  year’s  imprison¬ 
ment.  All  labourers  and  artificers  are  annually  to  be 
sworn  at  the  leet,  to  observe  the  statutes  relating  to  their 
wages,  and  if  they  refused,  to  be  put  in  the  stocks  three 
days.  To  facilitate  this  it  was  provided,  that  every  town 


c. 


18 


or  seignory,  not  having  stocks,  was  to  be  fined  a  hun¬ 
dred  shillings.”* 

Thus  we  find  that  tOAvns  had  subsisted  without  stocks, 
as  in  this  our  own  happy  country,  till  these  mischievous 
laws  and  persecutions  rendered  them  essential,  and  made 
it  penal  to  be  without  stocks. 

These  statutes  were  continued  in  England,  with  addi¬ 
tions  and  alterations,  from  time  to  time ;  but  history 
shows  how  they  were  always  abhorred,  and  consequent¬ 
ly  difficult  of  execution. 

“  In  the  time  of  Hen.  VI.  it  appears  that  masons 
used  to  hold  confederacies  and  meetings,  to  concert 
schemes  for  opposing  the  statutes  of  labourers.  To 
prevent  the  effects  of  them  it  was  enacted,  that  any  one 
causing  such  chapiters  or  congregations  to  be  assembled, 
should  be  judged  guilty  of  felony."] 

Still,  the  more  obnoxious  those  laws  became  to  human 
feelings,  the  more  difficult  it  was  to  execute  them  ;  and 
we  find  that  in  the  reign  of  Elizabeth ,  if  not  more  tender, 
more  wise,  than  her  predecessors,  they  were  all  re¬ 
pealed. 

The  repealing  act  is  entitled, 

“  An  act  containing  divers  orders  for  artificers,  labour¬ 
ers,  servants  of  husbandry,  and  apprentices.]" 

After  reciting  that  a  great  number  of  statutes  stand 
in  force  presently  on  the  subject,  it  proceeds  :  “  yet 
partly  for  the  imperfection  that  is  found  in  sundry-  of  the 
said  laws,  and  for  the  variety  and  number  of  them,  and 
chiefly  for  that  the  wages  and  allowances  limited  and  ra¬ 
ted  in  many  of  the  said  statutes,  are  in  many*  places  too 

•  / 

*12  Rich.  II.  c.  3.  p.  223.  7  Hen.  IV.  c.  17. 

t  5  EH:,  c.  4. 


f  3  Hen.  VI.  c.  1. 


19 


small,  and  not  answerable  to  this  present  time,  respect¬ 
ing  the  advancement  of  prices  of  all  things  belonging  to 
the  said  servants  and  labourers,  the  said  laws  cannot, 
without  the  great  grief  and  burthen  of  the  poor  labourer 
and  hired  man ,  be  put  into  good  and  due  execution.” 

Yet  had  the  execution  of  these  laws  been  all  along  en¬ 
forced  “  to  the  great  grief  and  burthen  of  the  poor  labour¬ 
ing  and  hired  man and  the  poor  hired  man  was  all 
along  forced  to  swear  to  them,  or  else  be  put  two  nights 
and  three  days  in  the  stocks,  and  the  rest  of  his  life-time 
in  gaol ;  and  whoever  was  moved  by  pity  to  harbour 
him,  was  declared  a  malefactor  for  his  sake.  Was  this, 
or  was  it  not,  warring  against  humanity,  against  Christian 
charity,  and  the  religion  of  an  oath.  By  this  statute, 
too,  the  justices  were  to  fix  the  wages  of  workmen,  and 
whoever  gave  more,  as  well  as  he  who  took  more,  than 
they  fixed,  was  imprisoned ;  and  those  bred  to  arts  wrere 
to  be  put  in  the  stocks  two  days  and  one  night  if  they 
refused  to  work  at  husbandry  ;  and  both  men  and  wo  ¬ 
men  were  compellable  to  work  one-half  of  the  year  from 
five  in  the  morning  till  eight  in  the  evening,  and  the 
other  half  of  the  year  from  twilight  to  twilight,  that  is, 
as  long  as  they  could  see. 

If  we  begin  to  adopt  these  stupid  acts  of  oppression, 
we  shall  find  it  difficult  to  stop.  There  are  others  of  the 
same  family,  so  connected  in  kind,  that  they  hang 
together  like  tape  worms— you  cannot  take  one  but  you 
must  pull  all  with  you. 

There  is  one  regulating  what  persons  of  every  degree 
should  eat,  on  what  particular  saints’  days  they  should 
have  sauce  to  their  meat,  and  of  what  their  sauce  should 
be  made  ;  and  the  reason  given  is,  that  “  the  English 
used  moie  meat  than  any  other  people,  which  not  only 


20 


hurt  their  souls,  but  left  less  for  them  to  give  the  king 
when  he  had  need  of  it.”* 

There  are  others  as  fantastical,  called  statutes  of  ap¬ 
parel,  prescribing,  according  to  the  condition  of  each 
man  and  woman,  of  what  form  and  stuff  their  coats  or 
petticoats  should  be. 

One  enacts,  that  no  hat  shall  be  above  twenty  pence, 
nor  cap  above  two  pence. f 

Another,  that  wearing  silk  on  hat  or  bonnet,  gilt 
scabbards,  hose,  shoes,  and  spur  leathers,  shall  be  three 
months  imprisonment  and  forfeiture,  &c4 

Another,  that  all  persons  above  seven  years  old  shall 
wrear  caps,  or  forfeit  three  shillings  and  four  pence  to  the 
king,  except  maids,  ladies,  and  gentlewomen  of  twenty 
marks  lands,  and  lords,  knights,  &c.§ 

Before  we  borrow  from  such  a  code,  let  us  examine, 
from  good  evidence,  what  was  the  spirit  of  old  times, 
and  what  progress  human  reason  had  made  when  the 
principles  we  are  about  to  adopt  first  took  their  rise. 

I  have  now  my  finger  on  a  statute  which  is  precious  in 
that  view.  It  is  unfortunately  in  that  fearful  jargon 
called  law  French ,  which  modern  men  cannot  pronounce 
for  fear  of  dislocating  their  jaws.  I  would  as  soon  crack 
so  many  butternuts  as  pronounce  so  many  words  of  it. 
I  shall,  therefore,  humbly  beg  leave  of  the  court  to  read 
some  passages  in  English. 

It  is  thus  entitled  : 

“  What  kind  of  apparel  men  and  women  of  every  de¬ 
gree  are  allowed  to  wear ,  and  rvhat  prohibited .”** 

*  Statutum  de  cibariis  utendis,  10  Edit).  III.  f  4  Hen.  VII.  c.  9. 

i  t'Phil.  &  .Mary.  §  is  Eliz.  c.  19.  **  3  Eda.  IV.  c,  5.  A.  D.  1443. 


21 


“  It  is  ordained  and  established,  that  no  person  of  the 
degree  of  a  valet,  or  under  that  degree,  at  the  feast  of 
Saint  Peter,  called  the  chains,  which  shall  be  in  the  year 
of  our  Lord  one  thousand  cccclxi.  shall  use  nor  wear 
in  array  for  his  body,  any  bolsters,  nor  stuffs  of  cotton, 
wool,  or  cadas ;  nor  other  stuffing  in  his  parer  point, 
upon  pain  of  forfeiting  to  the  king  for  every  offence, 
vi.  s.  viii.  d.  No  knight  under  the  estate  of  a  lord,  no 
esquire,  gentleman,  nor  other  person,  to  use  nor  wear  at 
the  feast  of  All  Saints,  which  shall  be  in  the  year  of  our 
Lord  one  thousand  cccclxv.  any  gown,  jacket,  or  cloth,  of 
such  a  length.”  (See  p.  22.)  The  court  will  excuse  me 
from  saying,  for  the  present,  of  what  length.  “  Nor  wear 
at  the  said  feast  of  Saint  Peter  any  shoes  or  boots  having 
pikes  passing  the  length  ef  two  inches,  upon  pain  of  for¬ 
feiture  to  the  king  for  every  default  forty  pence.  If  any 
cordwainer  make  any  pikes  of  boots  or  shoes  after  the 
feast  of  St.  Peter,  contrary  to  the  ordinance,  he  shall  like¬ 
wise  forfeit  to  the  king  for  every  default  forty  pence.” 

Here  is  is  another,  entitled,  “  A  repeal  of  all  former 
statutes  touching  the  excess  of  apparel.” *  It  is  fortu¬ 
nately  in  English. 

It  recites,  “  that,  for  the  non  due  execution  of  the 
former  laws,  the  kingdom  had  fallen  into  great  miserie,” 
and  enacts,  “  that  no  person,  of  whatever  degree,  estate 
or  condition  that  he  be,  shall  wear  any  clothes  of  goide 
or  silke,  or  purple  coloure,  but  only  the  king,  the  queene, 
the  king’s  mother,  the  king’s  children,  his  brother  and 
sisters,  upon  paine  of  forfeiture  for  every  default  xx.  li. 
And  that  none  under  the  degree  of  a  duke  shall  weare 
any  cloth  of  goide  of  tissue,  under  xx  markes.  And 


*  22  Echv.  IV.  C.  1. 


0 


22 


none  under  the  degree  of  a  lord  shall  weare  plaine  cloth 
of  golde,  upon  paine  to  forfeit  for  every  default  x 
markes.  And  none  under  the  degree  of  a  knight  shall 
weare  any  velvet  in  their  doublets  nor  gownes,  nor  un¬ 
der  the  same  degree  weare  any  damaske  nor  satin  in 
their  gownes,  but  only  esquires  for  the  king’s  body,  up¬ 
on  paine  to  forfeit  for  every  default  xl.  s.  And  that  no 
yeoman  of  the  crowne,  nor  none  other  shall,  under  the 
degree  of  esquire  or  gentleman,  weare  in  their  doublets 
damaske  or  satin,  nor  gownes  of  chamlet,  upon  paine  to 
forfeit  for  every  default  fourtie  shillings.  And  no  servant 
of  husbandrie,  nor  common  labourer,  shall  weare  in  their 
clothing  any  cloth  whereof  the  broad  yard  shall  pass  the 
price  of  two  shillings ;  nor  suffer  their  wives  to  weare 
any  clothing  of  higher  value  than  is'  before  limited  to 
their  husbands.  Nor  shall  they  suffer  their  wives  to  weare 
any  veile  or  kercheffe  whose  price  exceedeth  twentie 
pence.” 

What  would  our  merchants  in  Broadivay  and  Maiden- 
Lane  say  to  such  fashions.  Our  wenches  would  not 
buy  such  veils  or  kerchiefs  to  wear  on  washing  days. 

“  Nor  shall  they  weare  any  hosen  whereof  the  paire 
shall  passe  eighteene  pence,  upon  paine  of  three  shillings 
and  four  pence.” 

If  our  ladies  were  not  to  exceed  that  price  for  their 
hose,  they  must  go  bare  legged. 

The  ordinance  then  gives  the  pains  and  forfeitures  to 
the  king,  to  be  employed  in  the  expenses  of  his  honoura¬ 
ble  house.  So  the  more  there  was  of  law-breaking  the 
better  for  the  king's  house.  “  But  paines  and  forfeitures 
in  and  for  the  premises  within  the  county  palatine  of 
Chester ,  shall  be  to  my  lord  the  prince  ;  and  within 


23 


Examshire ,  to  the  archbishop  of  York,  and  his  successors  ; 
and  within  the  bishoprick  of  Durham ,  to  the  bishop  of 
Durham ,  and  his  successors.”  Thus  every  little  vanity 
of  the  women  was  forty  pence  clear  gain  to  the  bishop 
and  his  successors,  of  the  see  of  Durham ,  “  after  the 
feast  of  the  epiphanie  next  coming,  but  not  before.” 
And  if  the  words  that  follow  were  of  any  other  man  than 
king  Edzvard  the  fourth,  I  might  scruple  to  utter  them  ; 
but  what  was  fit  for  that  gallant  prince  to  decree,  I  should 
not  be  too  fastidious  to  utter,  nor  this  hounorable  court 
disdain  to  give  ear  to. 

“  And  it  is  ordained  d  enacted,  by  the  authority 
aforesaid” — that  is,  of  king  Edward  the  fourth — “  that 
no  manner  of  person  under  the  estate  of  a  lord  shall 
weare  from  the  said  fe.  t  any  gowne  or  mantell,  unlesse 
it  be  of  such  length  thac  (he  being  upright)  it  shall  cover 
his  privy  members  and  his  buttocks,  upon  paine  to  for¬ 
feit  to  our  sovereign  lord  the  king  for  every  default 
twentie  shillings.” 

The  rigour  of  this  ordinance  is,  however,  tempered  by 
some  exceptions,  and  has,  among  others,  this  proviso  : 
“  provided  that  the  same  act  be  not  prejudicial  to  master 
John  Gurthorpe,  the  deane  of  the  king’s  chappel.”  Thus 
master  Gurthorpe ,  though  under  the  estate  of  a  lord,  was 
not  so  far  prejudiced  by  the  act  but  that  he  might  stand 
upright,  and  show  himself  gratis  to  the  king,  which  no 
other  man  else  could  do  under  twenty  shillings  a  time  ; 
and  why  ?  Because  master  John  was  the  king’s  dean  ! 
and  the  king  would  charge  him  nothing. 

If  the  gentlemen  for  the  prosecution  ask  to  what  pur¬ 
pose  I  read  such  statutes,  I  will  tell  them.  It  is  to  mo¬ 
derate  their  enthusiasm  for  old  English  laws  and  orcli- 


24 


nances,  and  to  render  them  better  contented  with  the  in¬ 
stitutions  and  usages  they  have. 

Still  if  there  were  no  worse  laws  than  these  masque¬ 
rading  regulations,  distinguishing  the  community,  like 
the  Hindoo  casts,  we  might  laugh  at  their  absurdity  ; 
but  the  laws  against  artisans  in  England  are  of  a  more 
cruel  nature. 

The  hardship,  for  instance,  of  makingyw.s^ce',?,  who  ne-  . 
ver  laboured,  the  judges  of  the  poor  man’s  labour,  its 
intensity  and  its  remuneration,  is  not  equitable.  They 
are  not,  in  that  respect,  treated  as  free  agents  ;  they  are 
not  judged  by  their  peers.  The  qualifications  of  those 
English  justices  are  no  qualifications  for  arbitration  of 
s’uch  kind.  They  may  be  “  most  sufficient  knights  and 
esquires,  with  freehold,  copyhold,  or  customary  estate 
they  may  be  “  of  the  peace  and  the  quorum.”  They  may 
be  loyal  men  to  church  and  state  ;  but  such  will  be  too  apt 
to  scorn  a  leather  apron.  It  is  not  with  their  back  to  the 
fire,  and  their  belly  to  the  table,  that  they  can  perceive 
the  poor  man’s  wants.  When  they  have  eat  their  capon, 
and  swallowed  their  sack,  with  their  reins  well  warmed, 
and  then  turn  round  to  take  their  nap,  with  their  backs  to 
the  table  and  their  belly  to  the  fire,  they  are  not  the  bet¬ 
ter  qualified  to  judge  the  poor  man’s  case.  Sir  Guttle 
may  calculate,  that  if  the  lean  rascals  were  to  feed  well, 
they  might  wax  as  fat  as  gentlemen.  And  justice  Droxv- 
sy  might  conclude,  that,  as  there  was  but  a  time  for  all 
things,  if  the  handicrafts  got  more  time  to  sleep,  there 
would  not  be  enough  left  for  gentle  folks.  If  jus¬ 
tice  Testy  has  the  gout,  and  his  shoe  should  pinch,  it 
would  be  reason  for  putting  all  the  ragamuffins  in  the 
stocks.  This  may  be  exaggeration  :  Perhaps  it  is  :  but 
if  there  be  any  truth  in  it,  let  it  go  for  what  it  is  worth. 


25 


There  exists  at  this  day  a  law  in  England that  arti¬ 
ficers  in  foreign  countries,  not  returning  within  six 
months  after  warning  given  them  by  the  British  ambas¬ 
sador  where  they  reside,  shall  be  deemed  aliens,  and  for¬ 
feit  all  their  lands  and  goods,  and  be  incapable  of  any 
legacy  or  gift.  By  it  the  industrious  man,  whose  only 
crime  is  the  possession  of  some  useful  art,  and  having 
transported  himself  to  a  country  where,  instead  of  groan¬ 
ing  under  taxes  and  tithes,  he  might  enjoy  the  fruits  of 
his  labour,  and  the  blessings  of  equal  laws,  is  subject  to 
be  remanded,  like  a  prison-breaker,  by  an  ambassador, 
sent  amongst  us,  possibly  for  the  purpose  of  debauch¬ 
ing  our  people,  insulting  our  government,  and  planning 
our  destruction. 

Other  statutesf  inflict  fine,  imprisonment,  pillory,  and 
ear-slitting,  upon  such  as  encourage  any  artisan  to  seek 
a  better  lot;  and  this  they  call  “ seducing  artisans .” 

I  recollect,  in  my  native  city,  a  strong  instance  of 
this  kind.  At  Londonderry  there  was  a  passage  across 
a  river,  as  inconvenient  as  either  of  our  ferries.  The 
desideratum  was  a  bridge.  The  honour  of  the  achieve¬ 
ment  was  reserved  for  Mr.  Lemuel  Cox  of  Boston.  He 
brought  with  him  a  few  chosen  workmen,  and  employed 
a  number  of  the  poor  labourers  of  the  country.  They 
learned  from  their  American  fellow-labourers  how  much 
better  industry  was  rewarded  in  the  western  world. 
They  addressed  themselves  to  their  honourable  employ¬ 
er.  He  was  not  guilty  of  seducing  them,  nor  they  of 
being  artisans.  He  was  put  in  prison.  His  innocence 
was  manifest,  and  he  was  released  ;  but  such  was  the 
envious  return  for  the  greatest  benefit  that  city  ever 
knew. 

*  Stat.  5  Geo.  I.  c.  27.  f  5  Geo.  I.  c.  27.  23  Geo.  II.  c.  13.  14  Geo.  Ill,  c,  71, 

D 


26 


Shall  we,  then,  second  the  intention  of  the  oppressor  i 
Shall  we,  by  such  prosecutions,  drive  from  our  hospi¬ 
table  shores  those  who  increase  our  stock  of  industry, 
population,  and  revenue  ?  Shall  we  too  hunt  the  wan¬ 
derers  like  frighted  birds,  that  find  no  twig  unlimed,  no 
bough  to  light  upon  ?  Shall  we,  without  law  or  prece¬ 
dent,  and  in  the  teeth  of  a  non-usage,  as  old  as  the  an¬ 
nals  of  our  country,  rake  up  the  embers  of  the  English 
common  law  to  find  a  pretext  for  doing  what  never  was 
done  before,  and  never  should  be  done  ? 

If  we  do  this  we  must  do  more.  We  must  also  make 
statutes  of  labourers  :  for  these  persecutions  will  thin  the 
artisans  here  as  the  great  plague  did  formerly  in  Britain . 
Like  birds  of  passage,  no  longer  warmed  by  a  genial 
sun,  the  instinct  of  their  nature  will  warn  them  to  de¬ 
part.  Unless  restrained  by  bolts  or  penalties,  they  will 
flock  together,  even  on  the  house  tops,  and  take  their 
flight  no  man  knows  where  ;  not  like  the  summer  swal¬ 
lows  for  a  season,  and  to  return  again ;  but  like  the  vital 
breath,  which,  when  it  quits  its  earthly  residence,  leaves 
it  for  ever  to  decay  and  moulder,  and  returns  no  more. 

The  avarice  of  the  Patricians  drove  the  people  of 
Rome  to  the  mons  sacer.  Who  is  the  people-hating  Ap- 
pius  Claudius  that  would  do  so  here  l  And  if  it  be 
done,  which  of  these  sleek  and  pampered  masters,  will  it 
be,  Mr.  Corwin ,  or  Mr.  Minard ,  that  will  take  upon  him 
the  office  of  Agrippa ,  to  cajole  them  with  a  parable,  how 
he  is  all  belly,  and  they  all  members  ;  how  his  vocation 
is  to  eat  and  repose,  theirs  to  work  and  starve. 

Let  not  these  allusions  be  thought  foreign  to  the  point. 
It  is  by  taking  larger  views  of  things  that  we  master  the 
little  fidgeting  spirit  ot  circumstance.  Such  considera¬ 
tions  are  antidotes  to  those  occasional  spasmodic  affec- 


27 


tions  in  the  law,  which  it  is  important  to  cure  in  their 
incipiency,  lest  they  turn,  as  in  Great  Britain ,  to  a 
chronic  malady. 

This  prosecution  goes  professedly  upon  principles  of 
common  law  ;  and  I  have  shown  an  ancient  definition  of 
the  crime  in  affirmance  of  the  common  law,  to  which  it 
is  repugnant.  I  have  shown  the  same  statute  re-enact¬ 
ed  in  this  state  coeval  with  its  constitution.  I  have  shown 
negative  usage  in  England  down  to  the  passing  of  the  sta¬ 
tutes  of  labourers,  and  here  as  ancient  as  the  history  of 
America ,  and  as  uninterrupted  as  the  blessings  that  have 
showered  upon  this  land.  I  shall  now  show,  that  though 
the  common  law  of  England  should  warrant  such  a  pro¬ 
secution,  it  does  not  follow  that  it  should  prevail  here. 
And  to  this  end,  it  will  be  necessary  to  take  a  view  of 
the  principles  which  govern  the  adoption  of  the  laws  of 
a  mother  country  into  new  settlements. 

The  substance  of  all  the  authorities  in  the  English 
books,  upon  the  head  of  transplanting  the  English  law 
into  new  countries,  is  concisely  stated  in  Peere  Williams' s 
Reports.*  There  the  master  of  the  rolls  is  reported  to 
have  said,  that  the  lords  of  the  council  had  determined, 
upon  appeal  to  the  king  and  council  from  the  planta¬ 
tions — 

“  1st.  That  if  there  be  a  new  inhabited  country  found 
by  English  subjects,  as  the  laxv  is  the  birthright  of 
every  individual ,  so  they  carry  their  laws  with  them,  and, 
therefore,  such  new  found  country  is  governed  by  the 
laws  of  England ;  though,  alter  such  country  is  inhabited 
by  the  English,  acts  of  parliament  made  in  England , 
without  naming  the  foreign  plantations,  will  not  bind 

*  2  P.  IVina.  p.  75. 


28 


them  ;  for  which  reason  it  has  been  determined,  that 
the  statutes  of  frauds  and  perjuries,  requiring  three  wit¬ 
nesses  to  a  devise  of  lands,  does  not  bind  Barbadoes. 

“  2dly.  Where  the  king  of  England  conquers  a  coun¬ 
try  it  is  a  different  consideration  ;  for  the  conqueror ,  by 
saving  the  lives  of  the  people  conquered ,  gains  a  right 
and  property  in  such  people ,  in  consequence  of  which  he 
may  impose  upon  them  what  he  pleases .” 

I  shall  not  investigate  the  latter  clause,  nor  inquire  how- 
far  the  Dutch  inhabitants  became  the  property  of  king 
Charles  by  reason  of  his  “  saving  their  lives.yy  How  far 
such  doctrines,  in  a  limited  monarchy ,  are  constitutional ; 
how  far  they  are  humane,  in  any  circumstance,  I  leave 
to  others.  But,  as  the  English  settlers  were  encouraged 
by  the  promises  of  a  domestic  legislature  and  a  constitu¬ 
tion,  they  were  not  the  property  of  the  king,  and  they 
had  still  their  birthright.  Now  a  birthright  means  some 
indefeasible  advantage,  or  it  means  nothing.  Where  it 
is  said,  that  new  settlers  are  entitled  to  the  English  laws 
as  their  birthright,  it  cannot  be  intended  that  they  should 
be  encumbered  with  such  law-s  of  the  mother  state  as 
would  be  noxious  and  oppressive,  and  utterly  repugnant 
to  their  new  condition. 

The  authority  of  Sir  William  Blackstone  upon  this 
head  is  strongly  pronounced.  He  says,  “  these  notions 
of  the  law  of  England  being  ipso  facto  in  force  in  a  new 
country,  as  the  birthright  of  the  settlers,  must  be  under¬ 
stood  with  many  and  very  great  restrictions.  Such  co¬ 
lonists  carry  with  them  only  so  much  of  the  English  law 
as  is  applicable  to  their  own  situation,  and  the  condition 
of  an  infant  colony  :  such,  for  instance,  as  the  general 
rules  of  inheritance  and  protection  from  personal  inju¬ 
ries  :  the  artificial  refinements  and  distinctions  incident 


29 


to  the  property  of  a  great  and  commercial  people :  the 
laws  of  police  and  revenue,  such,  for  instance,  as  are  en¬ 
forced  by  penalties  :  the  mode  of  maintenance  for  the 
established  clergy  :  the  jurisdiction  of  the  spiritual 
court ;  and  a  multitude  of  other  provisions  are  neither 
necessary  nor  convenient  for  them ,  and  therefore  are  not 
in  force.  What  shall  be  admitted,  and  what  rejected  ; 
at  what  times,  and  under  what  restrictions  must  be  deci¬ 
ded  in  case  of  dispute,  in  the  first  instance,  by  their  own 
provincial  judicature,  subject  to  the  revision  and  con¬ 
trol  of  the  king  and  council.”* 

I  shall  adventure  no  further  on  this  subject.  It  is 
enough  for  me  that  our  judges  are  free  to  determine 
what  parts  of  the  common  law  shall  be  adopted,  and 
what  rejected.  Formerly,  the  provincial  legislatures  of 
the  colonies  could  do  it,  subject  to  the  revision  and  con¬ 
trol  of  the  king  of  England  and  his  council.  Our  inde¬ 
pendent  judges  will  now  decide  without  any  such  control. 
I  shall,  however,  call  to  my  aid  a  short  passage  from  a 
very  useful  domestic  historian,  in  treating  “  of  our  laws 
and  courts .” 

“  The  state  of  our  laws  opens  a  door  to  much  contro¬ 
versy.  The  uncertainty  with  respect  to  them  renders 
property  precarious,  and  greatly  exposes  us  to  the  arbi¬ 
trary  decisions  of  bad  judges.”! 

Let  it  be  remembered  this  was  written  when  the 
judges  were  appointed  by  a  foreign  influence,  and  our 
benches  not  filled  as  they  are  now,  by  judges  who  pos¬ 
sess  the  people’s  confidence. 

“  The  common  law  of  England  is  generally  received 
together  with  such  statutes  as  were  enacted  before  we 


*  1  Com.  p.  10". 


f  Smith’s  Hist.  J\”.  F.  c.  6.  p.  202. 


30 


had  a  legislature  of  our  own.  But  our  courts  exercise 
a  sovereign  authority  in  determining  what  part  o  the 
common  and  statute  law  ought  to  be  extended  ;  for  it 
must  be  admitted  that  the  difference  of  circumstances 
necessarily  requires  us  in  some  cases  to  reject  the  deter¬ 
mination  of  both.” 

Judge  Tucker ,  a  writer  worthy  of  his  country,  states, 
that  all  parts  of  the  common  law  and  statutes  of  England , 
which  from  their  inapplicability  had  never  been  brought 
into  practice,  during  the  existence  of  the  colonial  govern¬ 
ments,  must,  from  the  dissolution  of  those  governments, 
be  regarded  not  only  as  obsolete,  but  as  incapable  of  re¬ 
vival. ,  except  by  constitutional  or  legislative  authority, 
having  no  longer  even  a  potential  existence ,  founded  up¬ 
on  that  theory  of  British  laws,  extending  to  the  remotest 
extremity  of  the  empire  :  for  the  connection  once  bro¬ 
ken,  he  considers,  that  theory  at  an  end  ;  and,  therefore, 
such  as  never  had  obtained  authority  from  usage  and 
custom,  he  holds  destitute  of  every  foundation  upon 
which  any  supposed  obligation  could  be  built.  This  he 
considers  the  natural  consequence  of  the  revolution ,  and 
the  correspondent  changes  in  the  government ;  unless, 
he  emphatically  adds,  “  we  suppose  that  the  laws  of  En¬ 
gland ,  like  those  of  the  Almighty  Ruler  of  the  universe, 
carry  with  them  an  intrinsic  obligation  upon  all  mankind  ; 
a  supposition  too  gross  and  absurd  to  require  refutation.”* 

Several  of  the  state  constitutions,  with  the  same  inten¬ 
tion  as  ours,  have  used  a  more  definite  expression,  and 
instead  of  saying  that  such  parts  of  the  English  laws  as 
were  theretofore  in  force ,  should  continue  to  be  so,  till 
repealed,  &c.  they  have  used  the  term  “ practised  onf 


*  1  Tuck.  Bine!:.  Jlp'j.  p.  406. 


31 


extinguishing,  without  more  form,  all  such  obsolete  or 
incongruous  parts  as  had  not  been  found  applicable  to 
the  necessities  of  their  condition ;  such  as  during  two 
or  three  centuries,  or  since  their  first  origin  as  a  colon)7, 
had  never  been  called  into  activity. 

In  vain,  otherwise,  would  our  constitution  have  repealed 
the  statutes.  In  vain  have  consigned  to  oblivion  so  many 
remnants  of  antiquated  folly,  if  ever  and  again  some  un¬ 
substantial  spectre  of  the  common  law  were  to  rise  from 
the  grave  in  all  its  grotesque  and  uncouth  deformity,  to 
trouble  our  councils  and  perplex  our  judgments.  Then 
should  we  have,  for  endless  ages,  the  strange  phantoms 
of  Piets  and  Scots,  of  Danes  and  Saxons ,  of  Jutes  and 
Angles ,  of  Monks  and  Druids,  hovering  over  us  like 
“  ravens  o’er  the  haunted  house,”  or  ghosts 

“  That  inglorious  remain 
Unburied  on  the  plain.” 

In  vain  would  this  country  advance  in  commerce,  arts  and 
industry  ;  in  vain  science  and  philosophy  make  then- 
abode  among  us  ;  in  vain  propitious  heaven  designate 
with  a  favouring  hand  our  station  on  the  globe,  and  dis¬ 
tinguish  us  by  freedom  and  prosperity,  if  we  mar  our 
own  destiny  by  such  servile  adherence. 

A  century  ago,  when  the  independence  of  this  nation 
had  never  been  imagined,  when  it  was  ruled  as  a  colony 
by  a  despotic  governor,  two  presbyterian  clergymen  were 
arrested  by  Lord  Cornbury  for  preaching  in  an  illegal 
conventicle .*  They  were  brought  to  trial,  and  the  pro¬ 
secution  was  founded  upon  the  idea  that  the  acts  of  con- 

*  Vide  the  case  of  Mr.  Hampton  and  Mr.  Kcmmie ,  Smith’s  Hist.  N.  Y. 

p.  126, 


32 


formity  and  uniformity  were  in  force,  and  that  the  queen’s 
church  supremacy  was  to  govern  in  the  colony  as  in  the 
mother  country.  The  jury  refused  to  find  a  special  ver¬ 
dict  at  the  desire  of  the  prosecutor  ;  but  acquitted  the  de¬ 
fendants.  The  matter  was  there  dropped,  and  no  such 
prosecution  has  ever  since  been  attempted.  But  that 
which  might  have  been  before  the  revolution,  vexata 
questio ,  is  now  surely  past  all  doubt.  Why  was  that  pro¬ 
secution  then  defeated  ?  Because  what  was  law  in  En¬ 
gland  was  not  then  taken  for  law  in  the  colony.  Yet  those 
statutes  were  law  in  England  before  the  settling  of  this 
country  ;  and  the  queen’s  supremacy  was  held  part  of 
the  common  law.  But  it  required  two  things :  first, 
that  it  was  law  in  England ;  and,  secondly,  that  it  was 
useful  or  expedient  to  be  adopted  in  the  new  country. 

The  more  I  reflect  upon  the  advantages  this  nation  has 
gained  by  independence,  the  more  I  regret  that  one  thing 
should  still  be  wanting  to  crown  the  noble  arch — A  na¬ 
tional  code. 

I  lament  that  the  authors  of  the  revolution,  wearied 
with  toil  and  human  waywardness,  should,  on  the  very 
threshold  of  perfect  redemption,  have  failed,  like  the 
fabled  poet  of  antiquity,*  by  looking  back,  and  suffered 
the  object  of  their  long  and  ardent  cares  to  relapse  again 
into  the  empire  of  Pluto ,  and  themselves  to  sink  at  length 
breathless  and  spent  under  the  burthen  of  the  common 
law. 

Much,  it  is  true,  was  done.  A  nation  was  rescued 
from  colonial  dependence  ;  her  citizens  from  prerogative, 
monopoly,  and  privilege  ;  religion  purged  horn  intole¬ 
rance  ;  and  a  constitution  was  founded  on  the  sacred 


*  Orpheus. 


33 


rights  of  man.  They  might  well  exclaim,  sat  patria , 
who  had  done  so  much,  and  having  done  so  much,  per¬ 
haps,  have  thought  it  beneath  their  high  achievements 
to  stay  and  strip  the  dead.  They  might  think  it  wiser 
to  trust  to  peaceful  posterity  and  tranquil  times  to  per¬ 
fect  their  great  work.  Why,  then,  do  not  those  who 
live  beneath  the  shade  which  they  have  planted,  gene¬ 
rously  answer  to  their  intentions,  and  fulfil  their  great 
designs  ? 

I  have  said  that  there  was  no  American  precedent  for 
this  indictment,  unless  it  were  imported  from  Great  Bri¬ 
tain  in  this  present  year,  and  I  hold  in  my  hand  a  mi¬ 
nute  report  of  a  similar  case  in  Philadelphia ,  where  the 
law  was  fully  and  ably  discussed  at  the  bar,  and  where 
it  appeared,  ex  concessis ,  that  no  such  precedent  existed 
in  America.  The  only  opinion  as  yet  to  sanction  it  is 
that  of  a  single  judge,  Mr.  Levy ,  the  recorder  of  Phila¬ 
delphia.  Before  that  becomes  precedent  and  law,  I  shall, 
without  personal  disrespect,  canvass,  with  due  freedom, 
the  doctrines  he  lays  down  to  the  jury  as  law.  He  first 
warns  the  jury  against  the  arguments  of  counsel,  as  be¬ 
ing  but  appeals  to  their  passions,  and  then  reminds  them 
that  such  combinations  will  enhance  the  price  of  their 
own  boots,  touching,  I  think,  himself  upon  a  very  sordid 
passion.  Boots,  he  says,  are  articles  of  first  necessity. 
I  cannot  there  agree  with  him.  When  I  think  how  ma¬ 
ny  patriarchs  have  reached  the  blessed  abode  of  their 
fathers,  and  never  worn  boots,  how  many  serjeants  have 
trod  the  thorny  mazes  of  the  common  law,  and  worn  no 
boots,  and  how  many  poor  poets  have  bestrode  the  fiery 
courser  of  the  muses,  and  had  no  boots,  I  cannot  think 
them  things  of  such  necessity.  But  equal  justice  is  of 

E 


34 


first  necessity,  and  when  that  is  given  for  the  sake  of 
boots,  boots  are  too  dear. 

His  honour  said  it  was  improper  to  inquire  whether 
or  not  the  application  of  the  common  law  to  our  con¬ 
cerns  would  operate  as  an  attack  upon  the  rights  of  man. 
But  surely  if  it  did  so,  and  that  could  be  shown,  it  would 
be  repugnant  to  our  constitution  ;  and,  if  it  would,  the 
constitution  must  prevail  above  the  common  law  of  a 
foreign  country  ;  then  whether  it  be,  or  be  not,  an  attack 
upon  the  rights  of  man,  is  the  very  fittest  thing  to  be 
inquired  into.  The  argument  of  the  learned  judge,  I 
think,  is,  upon  that  ground,  a  petitio  principii. 

Again ;  he  is  reported  to  have  said,  that  it  was  indiffer¬ 
ent  whether  the  prosecution  arose  from  good  or  bad  mo¬ 
tives  ;  whether  the  traversers’  intentions  were  to  resist 
oppression,  or  to  demand  extravagant  compensation.  If 
he  had  said  this  upon  the  ground  that  in  neither  case  a 
public  prosecution  would  lie,  it  might  have  been  true  ; 
but  when  his  charge  went  to  convict,  it  appears  too  like 
confounding  all  right  and  wrong,  to  make  no  distinc¬ 
tion  between  a  prosecution  founded  in  honesty,  and  one 
founded  in  corruption ;  or  between  the  acts  of  defend¬ 
ants,  whether  founded  in  extortion  or  self  defence. 

He  admits,  however,  that  a  single  journejTman  may 
refuse  to  work,  but  many  journeymen,  jointly,  must  not- 
How  a  solitary  poor  workman  shall  resist  a  wealthy  and 
powerful  combination  of  masters  I  know  not.  There 
seems  to  be  mockery  in  the  idea.  If  the  sense  of  indi¬ 
vidual  weakness  is  the  cement  of  all  human  society,  what 
have  journeymen  done  that  they  should  be  put  out  of  the 
pale  of  human  society?  Must  they  be  scattered  like  the 
sheaf  of  rods,  to  be  more  easily  broken  ? 


35 


His  honour  states  next,  that  a  great  number  of  the  pro¬ 
secutions  in  his  court  are  brought  forward  from  impro¬ 
per  motives.  The  compliment  is  not  flattering  to  his 
suitors ;  but  that  is  immaterial  to  the  question  here. 

The  great  principle  upon  which  I  rely  he  lays  down  as 
fully  as  we  could  v/ish  ;  but  then  he  draws  from  it  a 
quite  opposite  conclusion.  He  says,  “  when  the  demand 
is  considerable,  and  the  work  well  done,  the  price  will 
be  high,  and  vice  versa.  So  that  to  make  artificial  re¬ 
gulations  is  not  to  regard  the  excellence  of  the  work  or 
quality  of  the  material.”  I  ask,  then,  why  call  in  the 
law  to  make  artificial  regulations  ?  Why  not  let  the 
thing  naturally  regulate  itself  ?  It  seems  as  if  folly  had 
this  privilege,  to  be  seen  only  at  a  distance,  and  be  invi¬ 
sible  when  it  stares  us  in  the  face.  We  can  see  well 
enough  the  ridicule  of  the  old  priggish  ordinances  we 
have  read  from  the  statutes  at  large,  which  fashioned 
men’s  gowns,  and  women’s  fardingales,  by  act  of  parlia¬ 
ment.  We  have  laughed  at  the  short  mantle  of  Dean 
Gurthorpe .  Others  after  us  will  laugh  at  our  solemn 
arguments  of  this  day.  We  might  as  well  prevent  pa¬ 
rents  from  conspiring  to  marry  their  children,  indict 
landlords  for  refusing  to  let  their  house  at  the  usual 
rents ,  or  merchants  from  following  the  rates  of  the  mar¬ 
kets.  We  never  should  have  had  such  notions,  but  that 
we  are  in  the  habit  of  borrowing  the  fashions  of  our 
thoughts  like  those  of  our  dress,  from  a  foreign  na¬ 
tion. 

Pains  and  penalties  ought  not  to  be  for  nothing.  Eve¬ 
ry  restrictive  law  is  more  or  less  an  evil.  To  inflict 
punishment  without  sufficient  cause  is  to  be  a  wrongdo¬ 
er  ;  and  the  onus  of  showing  the  necessity  lies  upon  the 
actor . 


fhe  next  argument  of  the  learned  judge  is  drawn  ab 
inconvenient i.  “  When  a  master  receives  a  large  order 
from  abroad  he  cannot  say  how  far  it  will  be  h  s  advan¬ 
tage  to  accept  it,  because,  if  the  w  orkmen  hear  of  it, 
they  may  make  a  sudden  jump  in  advance  of  their  la¬ 
bour.”  Well!  if  the  master  receives  an  advantageous 
order,  much  good  may  it  do  him.  But  if  he  makes  a  sud¬ 
den  jump  into  a  coach  and  country  seat,  why  shall  not 
the  poor  journeymen  jump  after  him  into  a  clean  shirt 
and  whole  breeches  ? 

The  recorder  did  well  to  state  the  sufferings  these 
turns  out  occasioned ;  but  he  would  have  done  still  better 
not  to  have  decreed  the  triumph  to  the  aggressor.  No  body 
of  men  will  inflict  upon  themselves  a  greater  evil  to  cure 
a  small  one,  the  very  violence  of  the  remedy  gives  the 
measure  of  the  grief. 

41  Whether  the  confederacy  is  to  benefit  themselves 
by  raising  their  wages,  or  to  injure  those  who  will  not 
join  them,  the  rule  of  law,”  says  his  honour,  “  equally 
condemns  them.”  I  think  such  principles  rob  the  law  of 
dignity  and  efficacy.  They  are  unnatural,  indiscrimina- 
ting,  and  harsh,  and  tend  to  make  the  law  feared,  but 
not  respected ;  for 

J\'emo  quod,  timet  amat. 

As  to  the  danger  of  the  community  going  barefooted,  I 
do  not  think  it  alarming.  It  will  be  a  specious  pretext  for 
wearing  out  old  shoes.  The  coblers  will  rejoice  ;  and 
some  sly  merchant  will  import  a  cargo  from  France  or 
England.  Muzzle  but  these  prosecutions,  and  then,  be¬ 
fore  we  have  gone  long  slipshod,  the  masters  and  the 


37 


men  will  have  come  to  an  agreement,  founded,  like  all 
bargains,  on  reciprocal  need  ;  the  one  giving  as  little  as 
he  can  give,  and  the  other  taking  as  much  as  he  can 
get.  Then  will  all  go  on  quite  well  ;  there  will  be  neither 
life  lost  nor  bone  broken  ;  and  no  germs  planted  of  a 
race  of  future  artisans  with  gray  hair  and  red  eyes. 

The  eulogium  of  the  learned  judge  upon  the  common 
law  is,  to  my  judgment,  something  exaggerated,  when 
he  likens  it  to  the  divine  system  of  providence.  “  It  is 
in  the  volume  of  the  common  law,”  he  says,  ‘‘that  we 
are  to  seek  for  the  far  greater  number,  as  well  as  the 
most  important,  of  the  cases  that  come  before  our  tribu¬ 
nals.  That  valuable  code  has  ascertained  and  distin¬ 
guished  with  critical  precision,  and  with  a  consistency 
that  no  fluctuating  political  body  could  or  can  attain,  not 
only  the  civil  rights  of  property,  but  the  nature  of  all 
crimes  from  treason  to  trespass.” 

When  such  arguments  are  used  to  induce  a  conviction 
of  a  great  portion  of  the  American  citizens,  it  is  the  du¬ 
ty  of  their  advocate  to  speak  out  honestly.  At  the  time 
when  the  common  law  had  its  origin,  no  part  of  which  time 
could  be  since  theheginning  of  the  reign  of  Rich.  I.  called 
in  law  time  of  memory,  and  that  is  about  six  or  seven  hun¬ 
dred  years  ago,  no  property  existed  under  any  of  the  modi¬ 
fications  which  now  regulate  it.  There  was  no  commerce, 
few  arts,  and  little  circulation  ;  tso  that  if  we  were  to 
look  into  “  that  volume ”  alone,  we  should  not  find  a 
rule  to  square  with  any  transaction  of  our  lives.  If, 
therefore,  it  be  like  divine  providence,  divine  provi¬ 
dence  has  long  abandoned  us.  And  were  we  now  to 
adopt  the  usages  of  those  times,  we  should  be  like  mas¬ 
queraders  upon  the  present  stage  of  society.  Touching; 


38 

shoemakers  certainly  we  should  find  no  laws,  for  lord  and 
lad}',  knight  and  esquire,  all  went  barefooted  ;  and,  pos¬ 
sibly,  whoever  lived  in  the  days  of  the  Druids ,  might 
have  counted  the  ten  toes  of  her  majesty  the  queen. 
Therefore,  if  we  can  find  no  usages  touching  the  matter 
nearer  at  hand,  it  is  useless  to  look  for  them  so  far. 

In  the  old  volumes  of  the  common  law  we  find  knight- 
service,  value  and  forfeiture  of  marriage,  and  ravish¬ 
ments  of  wards ;  aids  to  marry  lords’  daughters,  and 
make  lords’  sons  knights.  We  find  primer  seisins,  es- 
cuage,  and  monstrans  of  right :  we  find  feuds  and  subin¬ 
feudations,  linking  the  whole  community  together  in  one 
graduated  chain  of  servile  dependence  :  we  find  all  the 
strange  doctrine  of  tenures,  down  to  the  abject  state  of 
villenage,  and  even  that  abject  condition  treated  as  a 
franchise.  We  find  estates  held  by  the  blowing  of  a 
horn.  In  short,  we  find  a  jumble  of  rude  undigested 
usages  and  maxims  of  successive  hordes  of  semi-sava¬ 
ges,  who,  from  time  to  time,  invaded  and  prostrated  each 
other.  The  first  of  whom  were  pagans,  and  knew  no¬ 
thing  of  divine  law  ;  and  the  last  of  whom  came  upon 
the  English  soil  towards  the  decay  of  the  Roman  em¬ 
pire,  when  long  tyranny,  and  cruel  ravages,  had  destroy¬ 
ed  every  vestige  of  ancient  science,  and  when  the  pan¬ 
dects,  which  shed  the  truest  light  that  ever  shone  upon 
the  English  code,  lay  still  buried  in  the  earth. 

It  is  of  this  divine  law  that  lord  Coke  gravely  and  very 
quaintly  says,  “  the  common  law  was  that  which  was  in 
England  before  any  statute  was  enacted.  It  is  grounded 
upon  the  general  customs  of  the  realm  ;  includes  in  it 
the  law  of  God,  and  the  principles  and  maxims  of  the 
law.  It  is  founded  upon  reason,  is  the  perfection  of  rea¬ 
son,  acquired  by  long  study  and  experience,  and  refined 
5 


39 


by  learned  men  in  all  ages.”*  It  must  be  confessed  my 
lord  Coke  did  not  tie  himself  down  by  too  precise  a  defi¬ 
nition.  Such  phrases  are  sooner  made  than  compre¬ 
hended,  in  which  the  teacher  has  the  advantage  of  the 
learner.  Blackstone  says,  “  with  regard  to  the  aborigi¬ 
nes  of  our  island,  the  Britons ,  we  have  so  little  handed 
down  to  us  with  certainty,  that  our  inquiries  must  be 
fruitless  and  defective.  However,  from  Ccesars  account 
of  the  ancient  Druids  in  Gaul ,  in  whom  centered  all  the 
wisdom  of  the  western  parts,  and  who  were  sent  over  to 
Britain  (that  is,  to  the  island  of  Mona  or  Anglesea )  to 
be  instructed,  we  may  collect  a  fexv  points  which  bear  a 
great  affinity  to  some  of  the  modern  doctrines  of  our  En¬ 
glish  law  ;  particularly  the  very  notion  itself  of  an  oral, 
unwritten  law,  delivered  down  from  age  to  age  by  cus¬ 
tom  and  tradition  merely,  seems  derived  from  the  prac¬ 
tice  of  the  Druids ,  who  never  committed  any  of  their  in¬ 
structions  to  writing,  possibly  for  want  of  letters.  Since 
it  is  remarkable,  that  in  all  the  antiquities,  unquestiona¬ 
bly  British ,  which  the  industry  of  the  moderns  has  dis¬ 
covered,  there  is  not,  in  any  of  them,  the  least  trace  of 
any  character  or  letter  to  be  found.”f 

Thus  was  this  divine  system  delivered  down  by  the 
Druids ,  who,  after  possessing  all  the  learning  of  the 
western  parts,  were  sent  to  perfect  their  studies  in  Mona , 
and  there  became  so  learned  that  they  could  neither  read 
nor  write  ! 

After  touching  upon  other  of  their  wise  practices, 
such  as  burning  their  women  for  petty  treason,  our  au¬ 
thor  continues  :  “  The  great  variety  of  nations  that  suc¬ 
cessively  broke  in  upon  and  destroyed  both  the  British 


*  Co.  Lit.  97,  142. 


f  4  Com.  40S. 


40 


inhabitants  and  constitution,  the  Romans ,  the  Piets ,  and 
after  them  the  various  clans  of  Saxons  and  Danes ,  must 
necessarily  have  caused  great  confusion  and  uncertaintv 
in  the  laws  and  antiquities  of  the  kingdom,  as  they  were 
very  soon  blended  and  incorporated  together  ;  and,  there¬ 
fore,  we  may  suppose  mutually  communicated  to  each 
other  their  respective  usages,  so  that  it  is  impossible  to 
trace,  with  any  degree  of  accuracy,  when  the  several  mu¬ 
tations  of  the  common  law  were  made,  or  what  was  the 
Original  of  those  several  customs  we  at  present  use,  by 
any  chemical  resolution  of  them  to  their  first  and  compo¬ 
nent  principles.  We  can  seldom  pronounce  that  this 
custom  v'as  derived  from  the  Britons  ;  that  was  left  be¬ 
hind  by  the  Romans  ;  this  was  a  necessary  precaution 
against  the  Piets ;  that  was  introduced  by  the  Saxons, 
discontinued  by  the  Danes ,  but  afterwards  restored  by 
the  Normans. 

“  A  further  reason  may  be  also  given  for  the  variety 
and  of  course  the  uncertain  original  of  our  ancient  esta¬ 
blished  customs,  even  after  the  Saxon  government  was 
firmly  established  in  this  island,  viz.  the  subdivision  of 
the  kingdom  into  a  heptarchy,  consisting  of  seven  inde¬ 
pendent  kingdoms,  peopled  and  governed  by  different 
clans  and  colonies.  This  must  necessarily  create  an  in¬ 
finite  variety  of  laws,  though  all  the  colonies  of  Jutes , 
Angles,  Saxons,  and  the  like,  originally  sprang  from  the 
same  mother  country,  the  great  northern  hive  which 
poured  forth  its  warlike  progeny,  and  swarmed  over  Eu¬ 
rope  in  the  sixth  and  seventh  century.”* 

Now  here  is  from  the  pen  of  the  most  passionate  and 
eloquent  eulogist,  who  had  a  professor’s  chair  and  a  sala- 

*  i  Com.  4)  • 


41 


ry  for  praising  the  common  law,  an  account  of  the  true 
ancestry  of  this  divine  system.  All  I  can  say  of  it  is  this, 
that  the  same  panegyric  will  apply  totidem  verbis  to  the 
institutions  of  our  red  brethren,  the  Iroquois.  The  league 
of  the  live  nations  is  similar  to  that  of  the  heptarchy. 
Blackstone  here  tells  us  that  the  Saxon  heptarchy  was 
composed  of  Jutes ,  Saxons ,  Anglo-Saxons ,  and  the  like  ; 
all  sprung  from  the  great  northern  hive,  that  poured  forth 
its  warlike  progeny.  The  historian  of  the  five  nations* 
tells  us,  that  they  consisted  of  so  many  tribes,  or  nations 
joined  together  by  a  league  or  confederacy,  like  the  uni¬ 
ted  provinces,  and  without  any  superiority  the  one  over 
the  other.  This  union,  he  adds,  has  continued  so  long 
that  the  Christians  know  nothing  of  the  original  of  it  : 
the  people  in  it  are  known  by  the  English  under  the 
names  of  Mohawks ,  Oneidas ,  Onondagoes ,  Cayugas ,  and 
Senekas.  Here,  then,  is  an  ancestry  fairly  worth  that  of 
the  great  northern  hive.  The  one  had  their  Michell- 
Synoth ,  or  Witena-Gemot ;  the  other  their  sachems  and 
counsels,  of  whom  the  historian  thus  speaks  : 

“  Their  great  men,  both  sachems  and  captains,  are  ge¬ 
nerally  poorer  than  the  people,  for  they  affect  to  give 
away  and  distribute  all  the  presents  or  plunder  they  get 
in  their  treaties  or  war,  so  as  to  leave  nothing  to  them¬ 
selves.  There  is  not  a  man  in  the  ministry  of  the  five 
nations  who  has  gained  his  office  otherwise  than  by  me¬ 
rit  ;  there  is  not  the  least  salary  or  any  sort  of  profit 
annexed  to  any  office  to  tempt  the  covetous  or  sordid. 
Here  we  see  the  natural  origin  of  all  power  and  authori¬ 
ty  amongst  a  free  people.”! 

*  The  Hon.  Cadwallader  Golden,  p.  1.  f  Ibid,  p,  2, 

?  • 


42 


“  The  five  nations  think  themselves,  by  nature,  supe¬ 
rior  to  the  rest  of  mankind,  and  call  themselves  Ongue 

honwee .” 

Ongue  honwee  then  say  I,  and  away  with  your  old 
barons,  kings,  monks,  and  druids,  your  Michell-Synoth , 
and  your  JVitena-Ge?not.  If  we  look  to  antiquity  the 
red  men  have  it.  If  we  regard  duration,  they  have  it 
still  more,  for  the  Piets  and  the  Britons  have  long 
ceased  to  dye  themselves  sky-blue.  The  Indian  paints 
himself  for  war  even  to  this  day.  The  one  scalps  the 
enemies  of  his  tribe  ;  the  others  burned  their  own  wo¬ 
men.  The  Saxons  conveyed  their  lands  by  sod  and  twig ; 
the  Tuskaroras  by  the  more  elegant  symbols  of  beaver 
and  a  belt. 

When  Christianity  found  its  way  among  the  descend¬ 
ants  of  the  northern  hive,  some  little  learning  was  intro¬ 
duced,  but  little  it  must  have  been,  when  the  bare  wri¬ 
ting  of  a  man’s  name  would  save  him  from  the  gallows. 
That  was  the  venerable  privilege  of  their  clergymen. 
He  who  could  read  in  a  book  needed  neither  clerical 
gown  nor  shorn  crown,  for  it  was  presumed  one  so  quali¬ 
fied  could  be  nothing  but  a  priest.* 

Under  this  divine  system,  then,  the  commandment  of 
God,  ‘‘  thou  shalt  not  kill”  stood  thus  amended:  thou 
shalt  do  no  murder,  unless  thou  beest  a  clergyman. 

How  does  this  adopt  itself  to  our  sentiments  of  reli¬ 
gion  ?  How  would  our  clergy,  whose  only  immunity  is 
the  purity  of  their  lives,  spurn  at  such  a  privilege  P 

A  statute,  comparatively  old,  says,  “  no  person  which 
shall  be  found  guilty  of  petty  treason,  wilful  murder, 
robbing  of  churches,  wilful  burning,  &c.  shall  have  his 

*  *  Hate's  P.  C.  v.  2.  p.  523,  &c. 


/ 


43 


clergy,  unless  he  be  of  the  orders  of  subdeacon  or 
above.”*  How  do  our  purer  notions  of  religion  tally 
with  this  monstrous  distinction,  that  the  higher  the  spi¬ 
ritual  charge  the  greater  the  impunity  for  crime. 

A  Jew  or  a  Turk  had  not  clergy ,  but  a  Greek  or  an 
alien  had.f 

A  bastard  or  a  blind  man  might  have  it  if  he  could 
speak  Latin  congruously. 

A  nun  being  within  the  immunitas  ecclesice  had  it. 

But  a  wife  had  it  not,  and,  therefore,  if  she  committed 
manslaughter  with  her  husband,  he  was  privileged,  but 
not  she  !j:  Nuns  alone  of  all  the  fair  sex  were  privi¬ 
leged  to  kill  men,  or,  in  other  words,  were  within  the 
church’s  immunity  ;  no  other  ladies  could,  by  any  in¬ 
tendment  of  law,  be  taken  for  clergymen. 

Cicero  wondfered  how  two  soothsayers  could  look  each 
other  in  the  face.  I  wonder  how  the  two  learned  ex¬ 
pounders  of  the  common  law  opposed  to  us  can  do  so 
without  laughing. 

When  Blackstone  employs  his  elegant  pen  to  whiten 
sepulchres,  and  varnish  such  incongruities,  it  is  like  the 
knight  of  La  Mancha  extolling  the  beauty  and  graces  of 
his  broad  back’d  mistress  winnowing  her  wheat  or  riding 
upon  her  ass. 

There  was  once  an  hypocondriac  who  fancied  he  was 
pregnant  with  something  that  would  astonish  all  posteri¬ 
ty.  In  vain  his  best  friends  remonstrated  with  him  ; 
their  expostulations  only  irritated  and  aggravated  his 
malady  ;  but  his  skilful  physician  judged  it  wiser  to  com¬ 
ply  with  his  humour ;  and  having  chanced  to  find  a 

*  23  Hen.  VIII.  cited  11  Co.  Hep.  29.  b.  30  a. 
t  Hale’s  P.  C.  v.  2.  p.  393.  $  1  Hale’s  P.  C.  40. 


44 


hedgehog,  presented  it  to  the  patient  as  the  fruit  of  his 
travail.  He  pressed  the  urchin  with  transport  to  his  bo¬ 
som,  and  felt  that  it  was  prickly.  He  kissed  it,  and 
found  its  jegs  ;  he  looked  at  it,  and  acknowledged  that 
it  had  some  rough  and  uncouth  features  ;  but  he  loved  it 
because  it  was  his  own,  and  his  fond  prayer  was,  sweet 
babe,  may  you  live  for  ever — estc  pcrpetua  ! 

The  enemies  of  the  common  law,  says  the  recorder  of 
Philadelphia ,  when  they  attack  the  common  law,  single 
out  some  detached  branch  of  it,  and  declare  it  absurd 
and  unintelligible,  without  understanding  it.  If  tins  be 
so,  I  think  it  is  not  the  worst  generalship  ;  all  enemies 
attack  each  other  in  the  weakest  part  of  their  lines.  I  do 
not  profess  to  attack  the  common  law,  though  I  have  no 
superstitious  reverence  for  it,  and  think  there  are  other 
systems  as  good.  But  since  it  is  the  common  law 
which  is  set  on  to  trample  down  my  clients,  I  have  re¬ 
solved  to  take  the  bull  by  the  horns.  It  is  said  that  no 
man  who  does  not  understand  the  whole  of  it  is  fit  to 
judge  of  any  part  of  it.  If  that  be  so,  I  think  it  will 
have  its  privilege  of  clergy,  for  there  lives  not  a  judge 
upon  earth  who  is  entitled  to  cognisance  of  it.  Lord 
Coke ,  who  inked  more  paper  with  it,  and  bestowed  more 
time  and  study  upon  it,  than  perhaps  any  other,  exclaims, 
that  ever  with  increase  of  knowledge  cometh  increase  of 
doubt.  He  also  says,  that  in  its  fictions  consist  all  its  equitv. 
He  that  is  to  judge  of  it  then  must  not  increase  his  learn¬ 
ing,  for  that  would  increase  his  doubts,  and  render  him 
as  it  were,  a  Doctor  Dubitantium.  And  he  must  addict 
himself  to  fiction  to  comprehend  its  equity.  When  he 
has  done  this  he  will  have  the  qualifications  that  belong 
to  knave  and  fool. 


45 


Let  us  examine  it  in  its  most  essential  parts,  and 
what  is  it  ?  What  ever  could  have  been  the  wisdom  of  that 
law  which  decided  upon  the  life  and  death  of  man  by 
blasphemous  appeals  to  miracles  ;  by  fire  and  water  or¬ 
deal  ;  by  the  choak  bread  and  the  holy  cross ;  and  which 
decided  upon  property  by  venal  champions  ;  by  thumps 
of  sand  bags,  and  the  cry  of  craven  ?  How  does  this  ac¬ 
cord  with  our  principles  and  institutions,  which  do  not 
admit  of  fighting  cocks  for  money,  much  less  men  ? 

Why  did  our  constitution  repeal  the  English  statutes, 
and  declare  that  nothing  of  the  common  law,  repugnant 
to  that  constitution,  should  remain,  if  antiquated  barbari¬ 
ties  were  still  to  be  revived  and  visited  upon  us  ;  and  if 
we  are  not  to  be  allowed  even  to  inquire  whether  they  are 
attacks  upon  our  rights  or  not  ?  We  should  then  be  worse 
off  than  the  English  people  are  ;  for  many  of  the  old  com¬ 
mon  law  doctrines  are  abrogated  by  English  statutes,  but 
in  which  the  colonies  were  never  named,  and  with  which 
the  colonial  legislators  never  meddled,  not  supposing 
them  to  have  had  force  of  law  on  this  side  the  At¬ 
lantic.  Our  case  would  be  singular  on  the  earth.  Our 
judges  might  then  unlearn  all  they  had  studied  of  na¬ 
tional  or  congenial  institutions,  to  make  themselves 
proficients  in  Mercian  lage  and  Dane  lage.  They 
might  study  more  majorum  in  hollow  trees  and  caverns, 
till  they  forgot  to  read  or  write,  and  became  Druids  at 
common  law. 

When  is  it  that  we  shall  cease  to  invoke  the  spirits  of 
departed  fools  ?  When  is  it,  that  in  search  of  a  rule  for 
our  conduct,  we  shall  no  longer  be  bandied  from  Coke 
to  Croke ,  from  Plowden  to  the  Year  Books,  from  thence 
to  the  dome  books,  from  ignotum  to  ignotius ,  in  the  in¬ 
verse  rati©  of  philosophy  and  reason  ;  still  at  the  end  of 


46 


everv  weary  excursion,  arriving  at  some  barren  source 
of  grammatical  pedantry  and  quibble. 

How  long  shall  this  superstitious  idolatry  endure  ? 
When  shall  we  be  ashamed  to  gild  and  varnish  this  arbi¬ 
trary  gathering  of  riddles,  paradoxes,  and  conundrums, 
with  the  titles  of  wisdom  and  divinity  ?  When  shall  we 
strike  from  the  feet  of  our  young  and  panting  eagle  these 
sordid  couplets  that  chain  him  to  the  earth,  and  let  him 
soar,  like  the  true  bird  of  Jove ,  to  the  lofty  and  etherial 
regions,  where  destiny  and  nature  beckon  him  ? 

Those  who  framed  the  constitution  under  which  we 
live  did  not  abolish  all  the  common  law,  and  they  did 
right,  because  in  that,  as  in  other  systems,  there  is  al¬ 
ways  something  to  approve,  and  use  had  sanctioned  it. 
They  did  not  pursue  it  through  all  its  complex  details, 
for  that  would  have  been  endless  and  impossible  : 
but  they  abolished  all  the  English  statutes,  and  by 
a  general  clause,  abrogated  all  of  the  common  law  that 
should  prove  in  contrariety  with  the  constitution  they 
established.  In  Philadelphia ,  the  recorder  says,  you 
shall  not  even  inquire  whether  the  act  in  judgment  is  or 
is  not  an  attack  upon  the  rights  of  man.  But  the  constitu¬ 
tion  of  this  state  is  founded  on  the  equal  rights  of  men, 
and  whatever  is  an  attack  upon  those  rights  is  contrary 
to  the  constitution.  Whether  it  is  or  is  not  an  attack 
upon  the  rights  of  man,  is,  therefore,  more  fitting  to  be 
inquired  into,  than  whether  or  not  it  is  conformable  to 
the  usages  of  Piets ,  Romans,  Britons ,  Danes ,  Jutes ,  An¬ 
gles,  Saxons,  Normans ,  or  other  barbarians,  who  lived  in 
the  night  of  human  intelligence. — Away  with  all  such 
notions. 

Shall  all  others,  except  only  the  industrious  mechanic, 
be  allowed  to  meet  and  plot ;  merchants  to  determine 


47 


their  prices  current,  or  settle  the  markets,  politicians  to 
electioneer,  sportsmen  for  horseracing  and  games,  ladies 
and  gentlemen  for  balls,  parties  and  bouquets  ;  and  yet 
these  poor  men  be  indicted  for  combining  against  starva¬ 
tion  ?  I  ask  again,  is  this  repugnant  to  the  rights  of 
man  ?  If  it  be,  is  it  not  repugnant  to  our  constitution  ? 
If  it  be  repugnant  to  our  constitution,  is  it  law  ?  And  if 
it  is  not  law,  shall  we  be  put  to  answer  to  it  ? 

If  it  be  said,  they  have  wages  enough,  or  too  much 
already,  I  do  not  think  any  man  a  good  witness  to  that 
point  but  one  who  has  himself  laboured.  If  either  £f 
the  gentlemen  opposed  to  us  will  take  his  station  in  the 
garret  or  cellar  of  one  of  these  industrious  men,  get  a 
leather  apron  and  a  strap,  a  last,  a  lap-stone  and  a  ham¬ 
mer,  and  peg  and  stitch  from  five  in  the  morning  till 
eight  in  the  evening,  and  feed  and  educate  his  family 
with  what  he  so  earns,  then  if  he  will  come  into  court, 
and  say  upon  his  corporal  oath  that  he  was,  during  that 
probation,  too  much  pampered  or  indulged,  I  will  con¬ 
sider  whether  these  men  may  not  be  extortioners. 

The  principal  authority  relied  on  in  Philadelphia ,  was 
a  passage  from  Hawkins ,  and  I  am  bound  to  say,  that 
that  authority  was  grossly  mistaken.  It  was  adduced  to 
show  that  these  men  were  indictable  at  common  law. 
The  passage  is  thus  :  “  It  seems  certain  that  a  man  may 

not  only  be  condemned  to  the  pillory,  but  also  be  brand¬ 
ed,  for  a  false  and  malicious  accusation  ;  but  since  it  doth 
not  appear  to  have  been  solemnly  resolved  that  such  of¬ 
fender  is  indictable  upon  the  statute,  it  seems  to  be  more 
safe  and  advisable  to  ground  an  indictment  of  this  kind 
upon  the  common  law,  since  there  can  be  no  doubt  that 
all  confederacies  whatsoever,  wrongfully  to  prejudice  a 
third  person,  are  highly  criminal  at  common  law ;  as 


48 


where  divers  persons  confederate  together,  by  indirect 
means,  to  impoverish  a  third  person  ;  or  falsely  and  ma¬ 
liciously  to  charge  a  third  person  with  being  the  father  of 
a  bastard  child,  or  to  maintain  one  another,  in  any  mat¬ 
ter,  whether  it  be  true  or  false.”* 

Now  the  whole  of  this  passage,  when  understood, 
shows  the  contrary  of  what  it  was  cited  for.  The  author 
ratifies  the  common  law  definition  of  conspiracy  and 
maintenance,  and  justly  observes,  that  all  indictments  for 
false  and  malicious  conspiracies,  (for  of  such  only  he  is 
tljen  treating,)  are  more  safely  laid  at  common  law,  and 
that  for  such  false  and  malicious  accusations  men  may 
be  branded.  “  False  and  malicious  accusations  of  this  na¬ 
ture  are  indictable,”  he  adds,  “  rather  at  common  law  than 
under  the  statute  ;  and  it  does  not  appear  to  have  been 
ever  solemnly  decided,  that  such  false  and  malicious  ac¬ 
cusations  are  indictable  under  the  statute.” 

Was  it  not  a  perversion  of  this  author’s  meaning  to 
suppose  that  it  applied  to  a  confederacy  of  mechanics  for 
the  regulation  of  their  own  concerns  ?  What  has  their 
case  to  do  with  the  doctrine  of  false  and  malicious  accu¬ 
sations  ?  And  as  to  what  he  says  of  divers  persons  con¬ 
federating  by  indirect  means  to  impoverish  a  third  per¬ 
son,  or  falsely  charge  a  third  person  with  being  father  of 
a  bastard  child,  or  to  maintain  one  another  in  any  matter, 
whether  true  or  false;  has  not  this  a  manifest  reference 
to  the  crimes  of  false  conspiracy  and  maintenance,  as  al¬ 
ready  defined,  and  which  being  crimina  falsi ,  subjected 
the  party  to  be  branded  for  the  falsehood  P  What  has  all 
that  to  do  with  the  wages  of  tradesmen  ? 


1  Harvh.  P.  C.'e.  72.  p.  191.  Leach's  edit. 


49 


The  notion  that  confederating  to  do  any  thing  indirectly 
tending  to  impoverish  a  third  person,  is  indictable  at  com¬ 
mon  law,  is  so  puerile  a  mistake,  that  I  feel  distressed  to 
be  under  the  necessity  of  exposing  it.  Surely,  if  men 
were  indicted  for  conspiring  to  build  a  steam  boat,  which 
would  indirectly  impoverish  some  third  person,  for  in¬ 
stance,  the  master  of  a  passage  vessel,  the  absurdity 
would  be  very  glaring  ;  or  if  it  was  to  set  up  any  ma¬ 
chinery  that  would  be  the  means  of  underselling  others. 

Hawkins's  words  must,  therefore,  be  taken  secundum 
subjectam  materiam ,  and  according  to  the  context.  They 
will  then  be  consonant  to  old  authorities,  and  the  law- 
will  be  rescued  from  so  absurd  a  position,  as  that  all 
men  who  joined  in  any  thing  of  which  the  effect  might  be 
the  incidental  diminution  of  the  gains  of  a  third  person, 
should  be  therefore  guilty  of  the  crime  of  conspiracy, 
and  be  liable  to  branding. 

A  slight  and  a  very  slight  acquaintance  with  law  phra¬ 
seology,  or  with  the  popular  idiom  of  one  or  two  cen¬ 
turies  past,  will  suffice  to  clear  away  any  difficulty  which 
the  term  indirect  may  occasion,  if  taken  in  its  present 
vulgar  acceptation. 

Rectum ,  in  Latin ,  is  synonymous  with  jus ,  and  means 
law  or  right  j  and  was  anciently  used  even  for  the  accu¬ 
sation  or  trial.*  A  man  who  had  reversed  his  outlawry, 
or  who  stood  at  the  bar,  and  was  unaccused,  was  said  to 
be  rectus  in  curia ,  or  rectum  esse.  Directum ,  which  has 
the  same  root,  means  the  same  thing,  and  has  been  cor¬ 
rupted  by  the  French  into  the  word  droict ,  or  droit ,  and 
in  the  English ,  by  merely  throwing  away  the  Latin  ter- 

*  Bract,  lib.  S. 

& 


50 


initiation,  makes  direct.  The  privative  particle  in ,  in¬ 
verts  the  sense,  and  it  becomes  indirect ,  which,  in  the  old 
law  phrase,  meant  nothing  but  unlawful ;  as  we  find 
the  word  droit  in  all  our  law  French  books  means  law, 
and  is  the  generic  term  for  law  in  France  at  this  day. 

The  word  droict,  which  is  equivalent  to  the  English 
direct,  is  thus  defined  in  our  old  law  language  :  “  Droit 
est  ou  Von  ad  chose  qui  fuit  tolle  d' outer  per  tort ,  le  chal¬ 
lenge  on  le  claim  de  lui  qui  doit  avoir  ceo ,  est  terms 
droit.5'# 

And  the  words  direct  and  indirect ,  are  to  be  found 
generally  used  in  that  sense  by  authors  of  no  very  great 
antiquity. 

Johnson  defines  the  term  indirect  to  mean,  wrong,  im¬ 
proper,  not  fair  nor  honest ;  and  indirection  he  explains 
to  be  dishonest  practice,  but  observes  that  it  is  not  now 
in  use.f 

Shakspeare  makes  Brutus  say  to  Cassiusy 

“  By  heaven,  I  had  rather  coin  my  heart, 

And  drop  my  blood  for  drachmas,  than  to  wring 
From  the  hard  hands  of  peasants  their  vile  trash 
By  any  indirection." 

Wringing  from  their  hard  hands  by  indirection ,  means 
certainly  by  wrong,  and  not  by  circuity,  or  by  devious 
consequence,  as  the  modern  acceptation  would  import. 

Thus  has  the  sense  of  this  author  been  perverted  ;  and 
as  nothing  multiplies  like  error,  so  has  this  mistake  found 
its  way  into  many  book  manufactories,  but  can  always  be 
traced  back  to  this  single  source.  And,  although  itjnay 


*  Termes  tie  let'. 


f  Johnson's  ])ict.  folio. 


51 


have  had  some  influence  upon  the  decision  of  a  few  very 
modern  cases,  yet  there  is  no  adjudged  case  where  any  act 
has  been  held  indictable  as  a  conspiracy  at  common  law , 
whereof  the  essence,  or  corpus  delicti ,  has  not  been  false¬ 
hood,  oppression,  or  unlawful  maintenance,  in  some  sort 
or  other  ;  though,  perhaps,  not  always  as  exactly  as  the 
law  requires,  falling  under  the  definition  by  the  statute 
Edw.  I.  and  by  our  own  statute.  There  are  many  exe¬ 
crable  cases  to  be  found  in  English  books  upon  this 
very  subject  of  conspiracy,  as  well  in  the  star  chamber 
as  out  of  it.  There,  if  the  gentlemen  look  for  prece¬ 
dents,  they  may  find  them,  where  the  same  wretch*  has 
been  alternately  triumphant  accuser  and  degraded  cul¬ 
prit,  eulogized  and  reprobated  by  the  same  judge, f  exe¬ 
crated  and  honoured,  whipped  and  caressed,  pilloried  and 
pensioned.  Yet  with  all  the  strange  and  odious  things  to 
be  found  in  English  cases  of  conspiracy,  there  is  no  pre¬ 
cedent  of  such  an  indictment  as  this,  unless  it  be  under 
some  statute  made  expressly  on  the  subject. 

If  Hawkins  had  thought  workmen  indictable  for  com¬ 
bining  to  regulate  their  wages,  he  would,  with  his  usual 
precision,  when  treating  so  minutely  on  the  subject,  have 
said  so,  and  have  given  his  authority  for  saying  so.  His 
silence  on  the  subject  is  conclusive  that  he  never  even 
had  such  an  idea,  and  that  there  was  no  such  authority. 

Another  paragraph  was  cited,  from  what  is  called 
Leach’s  Hawkins ,  which  paragraph  Hawkins  never 
wrote,  nor  could  have  written,  viz.  •t  that  all  confederacies 
are  unlawful,  though  the  object  of  them  be  lawful.”  The 
case  from  which  this  strange  sentence  is  borrowed  is  that 
of  the  journeymen  taylors  of  Cambridge ,  in  the  7th  year 


Titus  Oates. 


f  Scrogg's. 


52 


of  Geo .  I.  The  death  of  queen  Anne,  and  the  acces¬ 
sion  of  George,  happened  in  1714.  The  case  must  have 
been  decided  about  1721.  Serjeant  Hawkins's  entire 
work,  in  two  folio  volumes,  was  published  in  1716.* 
This  passage  is  in  the  first  volume.  It  is  not  to  be  found 
in  the  folio  editions,  but  is  interlarded  in  small  tvpe  in 
the  new  editions,  which,  unfortunately,  contain  more  of 
what  Hawkins  did  not  write  than  of  what  he  did.  If  the 
venerable  serjeant  were  to  return  upon  this  earth,  I  think 
he  would  look  twice  at  some  of  those  note-mongers,  who 
had  conspired  with  the  booksellers  falsely  to  charge  him 
with  being  the  father  of  such  spurious  offspring,  and 
placarded  the  fair  monument  of  his  learning  and  in¬ 
dustry  -with  such  obscenities.  The  book  from  which  this 
queer  doctrine  has  been  extracted  is,  moreover,  the  -worst 
book  of  English  reports  under  which  the  shelf  groans. f 
It  is  a  book  with  two  names,  and  equally  condemned  by 
either. 

Its  character  is  to  be  found  in  Sir  William  Burrow's 
Reports,  given  not  only  by  that  judicious  reporter,  but 
also  by  Lord  Mansfield,  and  his  brethren. 

In  one  case  he  calls  it  “  a  miserable  bad  book,  entitled 
Modern  Cases  in  Law  and  Equity. 

In  another,  he  says,  that  when  8  Mod.  -was  cited,  “  the 
court  treated  that  book  with  the  contempt  it  deserved, 
and  they  all  agreed  that  the  case  was  wrong  stated.”^ 

See,  then,  upon  what  crutches  this  lame  cause  hobbles. 

Haxvkins,  (I  don’t  mean  Leach's  Hawkins ,  but  Hawk 
ins's  Hawkins')  refers  by  the  letter  (c)  to  three  cases 

*  1  Jlaivlc.  P.  C.  c.  72.  s.  2.  n.  2.  Leach's  edit; 

•j-  S  .Mod.  sometimes  called  . Modern  Cases  in  Lais  anil  Equity 
4  1  Burr.  3S6.  §  3  Burr.  1326. 


53 


»nly  for  the  doctrine  of  conspiring  to  impoverish  by  in¬ 
direct  means.  And  as  Hawkins  was  only  compiling 
from  books  of  reports,  and  only  digesting  and  arrang¬ 
ing  the  law  he  found  there,  it  is,  after  all,  the  authorities 
he  vouches  that  are  the  law,  not  his  book,  which  is  but 
the  index  to  them.  To  these  cases  then  let  us  resort, 
and  if  they  be  clear  we  get  rid  of  all  ambiguity. 

Rex  v.  Kimberly  and  Mary  North,*  was  a  false  con¬ 
spiracy  to  extort  money  by  falsely  accusing  the  party  of 
being  the  father  of  a  bastard  child.  The  only  question 
was,  whether  the  mere  conspiring,  without  carrying  the 
conspiracy  into  effect,  was  a  completion  of  the  crime,  or 
whether  there  must  be  a  manifestation  of  the  guilty  in¬ 
tention  by  some  other  overt  act ;  but  it  was  held  that  the 
false  and  malicious  intention ,  being  the  gist  of  the  offence, 
was  manifested  by  the  very  act  of  conspiring ,  which  was 
of  itself  a  sufficient  overt  act.  What  was  there  of  indi¬ 
rect  means  in  that  case,  if  indirect  be  meant  to  express 
any  thing  else  than  unlawful  P 

Rex  v.  Alderman  Sterling  and  others ,f  was  an  ex  offi¬ 
cio  information  and  concerned  the  king's  revenue.  Six¬ 
teen  or  seventeen  brewers,  of  London ,  were  indicted  for 
making  orders  that  no  beer  called  gallon  beer  should  be 
sold  but  of  a  certain  price.  This  order  was  averred  to 
have  been  made  with  a  view  to  impoverish  the  king’s 
excisemen,  and  bring  them  into  hatred  and  contempt 
with  the  people,  and.  to  excite  the  people  to  mutiny  and 
sedition,  and  to  pull  down  the  excise  house,  and  to  de¬ 
prive  the  king  of  1 1 8,000/.  rent,  which  he  had  by  the  tax 
upon  this  beer.  The  jury  found  them  guilty  of  meeting 
and  consulting  to  impoverish  the  excisemen ,  and  of  nothing 


*  1  Lev.  62. 


t  Ibid.  125. 


54 


more.  It  was  moved,  in  arrest  of  judgment,  that  if  any 
injury  was  done  it  was  to  be  remedied  by  civil  suit,  and 
the  excisemen  being  private  individuals,  that  no  public 
prosecution  could  be  maintained.  The  judges  so  far 
admitted  this  as  a  general  principle,  but  distinguished 
between  this  and  other  cases ;  because,  they  said,  it  con¬ 
cerned  the  king’s  revenue,  and  was  therefore  a  public 
offence.  The  principle  of  the  decision  seems  truly 
to  have  been  this,  that  “  reges  habent  longas  inanus” 
Be  that  as  it  will,  this  cases  proves  clearly,  that  my  in¬ 
terpretation  of  Hawkins's  text  is  right ;  for  if  all  confe¬ 
deracies  by  direct  means  to  impoverish  a  third  person , 
were  guilty,  there  could  have  been  no  doubt  in  this  case 
upon  the  special  finding,  and  no  room  for  the  distinction 
drawn  by  the  court,  nor  for  any  argument  at  all,  whereas 
the  court  adjourned  several  times  to  hear  further  argu¬ 
ment,  and  to  have  further  deliberation. 

This  was  the  case  referred  to  from  the  “  miserable  bad 
book”  by  the  title  of  The  Tub-women  v.  The  Br  eivers  of 
London.  It  seemed  to  puzzle  the  counsel  in  Philadelphia , 
and  it  puzzles  us  no  less,  to  divine  who  these  same  tub- 
women  could  be. 

The  solution  of  the  difficulty  may  be  this :  there 
was  formerly  in  the  exchequer  a  barrister  called  the  tub- 
man,  who  wras  a  king’s  counsel,  and  had  precedence.  It 
might  have  been  his  duty  to  file  this  information  ;  and 
the  cause,  vrhich  would  improperly  have  been  entitled 
The  Tubman  v.  The  Brewers ,  was  still  more  so  by  this  re¬ 
porter,  whom  the  court  of  king’s  bench  state  to  have  been 
a  mistater  of  cases,  called  TheTub-women  v.  The  Brewers. 
It  was  about  gallon  beer.  Gallons  and  tubs  have  some 
affinity,  gallons  being  but  the  diminutive  of  tubs,  sic  cani- 
bus  catulos  similes  sic  matribus  hcedos.  And  between  tub- 


3 


55 


men  and  tub-women  there  is  but  a  syllable.  A  reporter 
so  ignorant  of  men  and  things  might  mistake,  as  was  his 
habit,  and  send  forth  the  case  in  his  report  with  this 
whimsical  title. 

The  same  case  is  related  in  Keble's  Reports ,*  where 
the  various  adjournments  are  stated,  and  the  arguments 
on  each  day.  The  judges  either  did  not  well  understand 
each  other,  or  I  do  not  well  understand  them.  There 
are  many  confused  dicta  through  the  case,  and  I  leave  it  to 
my  learned  adversaries  to  make  what  use  they  can  of  them. 

The  other  cases  referred  to  by  Hawkins  are  for  the 
purpose  of  showing  that  a  conspiracy  is  of  itself  a  crime, 
though  never  followed  up  to  its  execution.  As  they 
turn  avowedly  on  the  common  law,  I  should  wish,  if  I  did 
not  fear  to  fatigue  the  court  with  an  argument  already 
from  necessity  too  long,  briefly  to  run  over  the  matter  of 
them,  in  order  to  show  more  fully  how  they  all  fall  un¬ 
der  the  definition  of  conspiracy  at  common  law,  on  which 
we  rely,  and  how  remote  they  are,  one  and  all,  from  the 
nature  of  the  present  charge  ;  falsehood  and  malice  will 
be  found  to  be  the  ground  of  every  one  of  them  ;  or  else 
maintenance  of  other  men’s  quarrels,  for  the  purposes  of 
oppression. 

[It  being  now  three  o’clock,  and  the  court  obliged  to 
attend  the  sittings  of  the  board  of  common  council,  the 
argument  was  adjourned  till  the  following  morning.] 

Tuesday ,  December  19,  11  o'clock. 

The  counsel  proceeded  briefly  to  examine  the  cases  in 
the  margin  of  the  folio  editions  of  Hawkins ,  referred  to 
in  the  passage  cited. 

*'  1  Keb,  350. 

# 


56 


Arundel  v.  Tregono,*  was  an  action  against  a  single 
defendant  for  a  malicious  indictment  for  stealing  a  bushel 
of  wheat,  and  no  question  about  conspiracy.  The  only 
question  was,  whether  the  court  would  intend  what  was 
not  averred,  that  the  justices  had  authority,  and  were  of 
the  oyer  and  terminer. 

Throgmorton's  casef  was  similar,  the  question  being 
whether  they  appeared  to  be  justices  of  assise  ;  for  if 
they  had  no  authority  the  party  was  never  in  jeopardy, 
and  nothing  being  done  to  put  the  accused  in  danger,  it 
was  argued  upon  as  merely  an  inchoate  offence. 

The  poulterers’  case:):  is  a  leading  one,  and  referred  to 
throughout  all  the  bo’oks.  It  therefore  demands  parti¬ 
cular  notice. 

A  number  of  poulterers  in  London  had  conspired  to 
indict  one  who  had  married  a  poulterer’s  widow,  of 
robbery,  and  to  have  him,  by  such  false  and  malicious 
charge,  arraigned,  adjudged,  and  hanged.  The  bill  was 
ignored  under  the  direction  of  the  court,  who  heard  and 
perceived  the  falsehood  of  the  testimony.  The  conspi¬ 
rators  were  indicted,  overt  acts  were  stated,  such  as  pro¬ 
curing  divers  warrants  of  justices  to  forward  their  false 
conspiracy,  &c.  The  argument  in  arrest  of  judgment 
was,  whether  the  bill  being  returned  ignoramus,  the  party 
accused  was  legitimo  modo  acquietatus ,  having  not  been 
acquitted  on  a  trial.  But  what  is  most  to  our  purpose  is 
the  note  by  Lord  Coke§  at  the  conclusion. 

“  Nota  reader.  These  conspiracies  punishable  by  law 
before  they  are  executed,  ought  to  have  four  incidents. 

“  1st.  It  ought  to  be  declared  by  some  manner  of  prose 
cation. 


*  Teh.  1 1C.  f  Cro.  r.liz.  56.  («)  Leach's  edit,  i  9  Co.  55.  b.  §  Fo!.  50  b. 


57 


u  2dly.  It  ought  to  be  maliciously  for  unjust  revenge . 

“  3dly.  It  ought  to  be  a  false  conspiracy  against  an 
innocent  man . 

“  4thly.  It  ought  to  be  out  of  court  voluntarily.” 

How  unlike  are  these  words  to  the  intemperate,  incondite 
notion  held  to  be  law  in  Philadelphia .  It  is  evident  that 
Lord  Coke  considered  himself  bound  by  that  definition  on 
which  we  rely,  and  which  he  had,  in  another  part  of  his 
writings,*  stated  to  be  in  affirmance  of  the  common  law. 

The  Seignior  Grey  de  Groby’s  case f  is  stronger  still  for 
us,  to  show  the  ancient  sense  of  the  courts  touching  con¬ 
federacies.  It  was,  nevertheless,  a  star  chamber  case, 
and  a  rigorous  one.  A  number  of  tenants  of  the  manor 
combined  to  petition  the  king  for  redress  in  a  matter 
where  they  claimed  a  right,  and  gave  to  one  Perkins  their 
names  on  carte  blanche ,  to  draw  the  petition  according 
to  the  best  of  his  judgment.  They  claimed  a  custom  that 
the  lord  should  be  compellable  to  make  an  estate  for  life 
to  the  eldest  son  of  the  deceased  tenant.  The  court  de¬ 
creed  that  the  complaint  was  not  censurable,  because 
made  without  force ,  and  to  the  king ,  who  had  power  to 
redress .  It  was  lawful,  they  held,  as  far  as  the  claim  of 
custom,  or  common,  because  each  had  an  interest  for 
himself ;  but  the  combination  to  claim  tenure  was  main¬ 
tenance,  they  said,  because  the  tenure  of  one  was  not  the 
tenure  of  the  other.  Now  this  applies  favourably  to  our 
side  of  the  case,  for  each  journeyman  has  an  interest  for 
himself.  They  have  used  no  force  ;  and  they  have  made 
their  griefs  known  only  to  their  kings ,  the  masters,  who 
had  power  to  redress  ;  and  what  they  sought  was  nothing 

*  Vide  sup.  f  Moore,  788.  4  Jcie.  I. 

H 


58 


false  nor  malicious ;  nor  were  their  means  unlawful  or  in¬ 
direct. 

The  next  is  an  erroneous  reference,  there  being  no 
such  case  in  the  page  nor  book  referred  to.* 

Rollers  Abridgment f  is  the  most  conclusive  of  all  that 
the  present  indictment  cannot  be  supported  upon  princi¬ 
ples  of  common  law.  I  have  searched  Brooke  and  Fitzher- 
bert ,  where  there  is  not  an  instance  of  any  conspiracy, 
except  such  as  fell  under  the  definition  given  by  statute 
Edrv.  I.  all  turning  upon  false  prosecutions  or  corrupt 
maintenance.  Rolle ,  who  compiled  his  Abridgment  a 
century  later,  under  the  head  of  Indictment ,  and  title 
Conspiracy ,  makes  five  subdivisions  or  sections. 

1st.  He  gives  the  definition  by  the  statute  Ediv.  I.  on  ' 
which  we  rely  entirely. 

2d.  “  If  two  or  more  confederate  together,  that  each 
of  them  shall  maintain  the  suit  of  the  other,  whether  the 
matter  be  false  or  true ,  although  they  do  nothing  in  con¬ 
sequence,  for  such  confederation  is  forbidden  by  the  law. 

2 7  Ass.  fol.  139.  b.  adjudge. 

3d.  “  Also,  if  men  confederate  bv  oath  in  the  same 
manner ,  as  above,  a  fortiori ,  they  shall  be  indicted  for 
that.” 

4th.  The  fourth  section  relates  to  false  affidavits  in 
chancery. 

5th.  If  one  swears,  or  procures  another  to  swear,  that 
a  thing  is  true  of  his  own  knowledge,  and  it  be  proved 
that  he  did  not  know  it  to  be  true,  he  shall  be  indictable, 
though  the  thing  happen  to  be  true. 

This  is  all  Rolle  says  of  conspiracy  ;  and  from  this  it 
is  clear  that  nothing  is  conspiracy  at  common  law  in 

*  1  Jilod.  1S5,  18G.  f  2  Roll  Mr.  77.  tiu  Conspirators,  pi.  2  and  3. 


59 


which  falsehood  is  not  the  principal  ingredient.  And  the 
villanous  judgment  which  followed  every  conviction, 
and  which  was  the  appropriate  punishment  of  the  crimi- 
na  falsi ,  makes  it  clear,  that  wherever  labourers  or  arti¬ 
sans  have  been  indicted,  it  has  been  under  the  statutes, 
not  at  common  law. 

I  have  read  this  title  through  in  English ,  in  order  not 
to  shock  the  ears  of  the  court.  I  shall,  however,  beg 
leave  to  repeat  the  second  section  in  the  original  dialect, 
and  to  point  out  the  misconstruction  of  the  text  in  which 
the  fallacy  has  originated. 

“  Si  deux  confederate  ensimul  chescun  de  eux  a  main- 
tainer  Pauter  lequel  lour  matter  soit  voier  ou  faux  com¬ 
ment  que  ils  mistont  riens  in  ure  encore  ils  poent  estre  in¬ 
dict  de  ceo ,  car  cest  confederation  est  defendu  par  la  ley." 
27  Ass.  fol.  139.  b. 

Instead  of  translating  the  words  “  lequel  lour  matter 
soit  voier  ou  faux ,”  so  as  to  express  the  true  sense,  viz. 
whether  the  matter  be  right  or  wrong,  the  book-makers 
have  overturned  the  author’s  meaning,  and  made  that  ap¬ 
pear  unnatural,  which,  in  the  ancient  language  of  the  law, 
is  most  clear  and  reconcileable  to  the  whole  range  of  prece¬ 
dent  authorities.  This  section  is  nothing,  in  truth,  but 
a  corollary  to  the  statutes  of  maintenance,  and  signifies 
merely  that  when  two  or  more  confederate  to  support 
each  other  falsely ,  or,  which  is  the  same,  without  regard 
to  the  truth  or  falsehood  of  the  matter,  then  that  confe¬ 
deracy  is  punished  by  the  law,  even  though  it  has  not 
been  carried  into  effect.  How  vitious  and  absurd,  then, 
is  that  interpretation,  that  says,  all  confederacies,  whether 
to  do  good  or  bad,  are  highly  punishable  at  common- 
law. 


60 


The  next  authority  is  The  Kingv.  Harrison  and  others.* 
There  the  indictment  was  for  conspiring  to  charge  one 
with  the  keeping  of  a  bastard  child,  and  bring  him  into 
disgrace  ;  and  it  was  held,  that  the  false  contrivance  to 
defame  the  person,  and  cheat  him  of  his  money,  was  an 
offence,  though  the  scheme  had  not  been  carried  into 
effect. 

The  King  v.  Tracy, f  was  an  indictment  against  a  jus¬ 
tice  for  putting  a  man  in  irons  to  extort  money  from  him 
by  false  charges. 

In  The  Qiteen  v.  Bestf  which  was  a  false  conspiracy 
to  charge  a  man  with  a  bastard  child,  the  true  distinction 
was  taken.  It  was  held  lawful  to  conspire  to  bring  an 
offender  to  justice  ;  but  guilty  to  prosecute  him,  right  or 
■wrong ;  and  it  was  debated  and  doubted  whether  to 
charge  him  falsely  with  a  mere  spiritual  offence  was  con¬ 
spiracy.  What,  tljen,  becomes  of  the  foolish  saying  that 
all  confederacies  are  punishable,  whether  to  do  right  or 
wrong  ;  for  such,  it  not  the  words,  is  the  principle  as¬ 
serted  in  Philadelphia. 

Such  ate  the  authorities  referred  to  by  Serjeant  Hawk¬ 
ins ,  whose  silence  alone  would  be  an  argument  against 
any  such  indictment  as  this,  and  yet  his  name  is  surrep¬ 
titiously  used  to  countenance  such  absurdities. 

If  there  be  a  few  modern  cases  more  lax,  and  where 
the  principle  has  been  shaken,  it  may  be  in  some  mea¬ 
sure  owing  to  these  very  corruptions,  because  as  law 
works  are  in  general  compilations,  an  error  soon  mul¬ 
tiplies,  and  that  which  has  but  one  single  source,  and 
that  in  ignorance  or  mistake,  being  copied  and  transcri¬ 
bed,  and  interlarded  into  the  writings  of  good  and  cor- 

*  1  Vent.  SOS,  304.  f  6  .Mod.  178. 

4  fj. Mod.  185.  1  Sulk.  172.  2  Lord  Jtaym.  1167.  S.  C. 


61 


rect  authors,  does  often  deceive,  and  at  length  takes  the 
imposing  title  of  an  authority. 

I  shall  examine  a  few  of  the  modern  cases  of  conspi¬ 
racy  at  common  law.  They  will  show  that  deceit  is  al¬ 
ways  essential  ;  that  in  some  sense  or  other  they  are  all 
tinctured  with  the  crimina  falsi. 

The  King  v.  Brissac  and  Scott  *  was  a  false  conspira¬ 
cy  between  the  captain  and  purser  of  a  man  of  war  to 
cheat  the  king  by  false  certificates,  and  the  various  acts 
of  fraud  are  distinctly  averred. 

Rex  v.  Watson, f  was  an  information  for  a  false  agree¬ 
ment  corruptly  to  charge  the  parish  by  giving  a  soldier 
10/.  and  a  fat  hog  to  marry  a  poor  woman.  The  defend¬ 
ants  being  overseers  of  the  poor,  there  also  the  overt 
acts  set  out  showed  deceit,  falsehood  and  corruption. 

Rex  v.  John  and  Mary  Sprog'gf  The  jury  found 
the  defendants  guilty  of  falsely  indicting  Walter  Gilman 
of  forging  a  stamp.  The  averment  in  the  indictment 
was,  that  the  defendants  did  wickedly  and  maliciously 
conspire  to  indict  the  prosecutor,  without  addin falsely, 
and  that  according  to  the  conspiracy,  combination  and 
agreement  between  them,  before  had,  they  actually  did, 
falsely ,  wickedly,  and  maliciously,  without  any  reasona¬ 
ble  or  probable  cause,  indict  him.,  and  the  indictment  is 
set  out.  The  falsehood  was  pretty  fully  made  appear  ; 
yet  the  argument  in  arrest  of  judgment  was,  that  it 
should  have  been  averred,  in  the  first  instance,  that  they 
did  falsely  conspire,  & c.  and,  afterwards,  that  in  conse¬ 
quence  of  that  false  conspiracy,  they  did  falsely  indict. 
The  court  adjourned  from  time  to  time,  to  consider  up¬ 
on  this  doubt,  which  I  think  is  pretty  strong  proof  how 


*  4  East,  171. 


f  1  Wilson,  41. 


t  2  Eitrr.  993. 


62 


Essential  the  falsehood  is  to  the  charge  of  a  conspiracy, 
and  without  which  they  never  would  have  been  indicta¬ 
ble  in  any  shape. 

The  liberty  I  take  in  protesting  against  this  undiscri- 
minating  adoption  of  the  common  law,  will  appear  less 
adventurous  if  it  be  considered,  that  a  great  portion  of 
the  British  empire,  though  governed  by  one  monarch, 
and  represented  in  one  parliament,  has  not  thought  pro¬ 
per  to  adopt  any  part  of  it.  The  Scotch ,  less  favoured 
than  the  English  in  soil  and  climate,  and  other  physical 
advantages,  yet,  as  moral  beings,  are  surely  not  inferior, 
and  out  of  their  mountains  and  their  moors  come  men 
able  to  assume  and  maintain  stations  in  the  intellectual 
world  before  unoccupied  or  unclaimed.  If  the  common 
law  were  like  the  divine  system  how  could  this  be  ? 
Would  not  those  who  were  formed  under  its  luminous 
auspices  as  far  transcend  all  others  as  truth  excels  error  ? 
for  laws  and  religion  are  the  fountains  of  education, 
from  which  national  character  is  derived.  But  the  Scotch , 
when  broken  by  unsuccessful  rebellion,  and  the  disastrous 
chances  of  war,  were  brought  to  surrender  their  inde¬ 
pendent  monarchy,  their  philly-beg  and  kilt,  but  never 
would  consent  to  the  laws  or  religious  establishments  of 
England.  If,  then,  so  important  a  portion  of  the  Bri¬ 
tish  island  can  do  so  well  without  any  part  of  the  com¬ 
mon  law,  can  it  be  necessary  for  us  superstitiously  to 
adopt  every  part  of  it  ? 

The  Irish  had  the  common  law  forced  on  them.  Their 
melancholy  history  is  now  well  understood.  And  from 
the  scintillations  of  exalted  genius  which  emanate  from 
the  ruins  of  Ireland ,  it  may  be  imagined  what  a  mass  of 
excellence  lies  brutalized  and  benumbed  by  vitious  in¬ 


stitutions. 


63 


The  Irish  had  an  ancient  code  which  they  revered.  It 
was  called  the  law  of  the  judges,  or  the  Brehon  laxv.  What 
it  was  it  is  difficult  to  say  ;  for  with  the  other  interesting 
monuments  of  that  nation’s  antiquity,  it  was  trodden 
under  the  hoof  of  the  satyr  that  invaded  her. 

Sir  William  Blackstone  in  treating  of  the  subjection 
of  the  Irish  to  the  English  laws,  has  had  need  of  all  his 
flexibility,  and  the  authors  he  refers  to  are  chiefly  inte¬ 
rested  or  official  calumniators.  After  slightly  touching 
upon  the  conquest,  and  planting ,  (by  which  planting  is 
meant,  settling  new  adventurers  upon  the  tombs  of  the 
slaughtered,)  he  says,  the  inhabitants  are,  for  the  most 
part,  descended  from  the  English ,  which  is  a  mistake, 
for  one  half  of  them  do  not  use  the  English  language, 
even  at  this  day.  “  King  John”  he  says,  “  went  over, 
carrying  with  him  many  able  sages  of  the  law,  and 
there,  by  his  letters  patent,  in  right  of  dominion  of 
conquest,  ordained,  that  Ireland  should  be  governed  by 
the  laws  of  England .”  King  John  was  a  vile  king. 
He  murdered  his  brother’s  first  born,  and  made  a  foot¬ 
stool  of  his  neck  for  the  servant  of  a  pope  ;  and  if  we 
judge  of  his  sages  by  himself,  we  can  believe  nothing 
good  of  them.  It  is  curious,  that  the  same  author,  in 
the  same  page,  says,  that  the  same  laws  which  king' 
John  and  his  sages  then  ordained,  had  before  been 
sworn  to  under  Henry  II.  at  the  council  of  Lismore ; 
yet  so  much  were  they  detested,  that  afterwards  Henry 
III.  and  Edward  I.  were  obliged  to  renew  the  injunc¬ 
tion.  “  And,”  adds  the  author,  “  at  length,  in  a  par¬ 
liament  holden  at  Kilkenny ,  40  Edw.  Ill  under  Lionel , 
Duke  of  Clarence ,  then  lord  lieutenant  of  Ireland ,  the 


1  Com.  101. 


64 


Brehon  law  was  formally  abolished,  it  being  declared  to 
be  indeed  no  law ,  but  a  lewd  custom,  crept  in  of  later 
times."  What  they  meant  by  a  lewd  custom,  crept  in  of 
later  times,  I  know  not ;  but  the  statutes  of  Kilkenny , 
which  came  after  it,  are,  of  all  laws  that  ever  were  en¬ 
acted,  the  most  atrocious ;  and  lewd,  indeed,  must  the 
custom  be,  that  was  not  ill  exchanged  for  them. 

No  wonder  that  the  “  wild  natives?'  even  in  the  days 
of  Elizabeth ,  still  kept  and  preserved  their  Brehon  law, 
of  which  its  enemies  are  constrained  to  say,  “  that  it 
was  a  rule  of  right,  unwritten,  but  declared  by  tradi¬ 
tion  from  one  to  another,  (like  the  common  law,)  in 
which,  oftentimes,  there  appeared  a  great  show  of  equity, 
though  it  was  repuguant  both  to  God’s  laws  and  man’s.”* 
What  happened  in  Ireland  must  happen  here,  if  we 
acknowledge  ourselves  subject  to  the  common  law  of 
England.  Whatever  statutes  have  modified  the  common 
law  in  England  to  the  exigencies  of  the  times,  not 
having  force  in  this  country,  we  should  have  the  laws  of 
the  Tudors ,  and  the  Stewarts ,  unless  we  adopt  something 
like  Poyning's  law,  acknowledging  our  inferiority  to 
the  English ,  and  making  their  laws  our  laws.  The 
Irish ,  at  one  time,  could  make  no  laws  in  their  parlia¬ 
ment,  that  were  not  first  certified  under  the  great  seal  of 
England ;  so  that  the  laws  were  made  first,  and  the  par¬ 
liament  held  afterwards,  to  enact  them.f  Is  not  this  ve¬ 
rifying  the  saying  ol  Marquis  Beccaria ,  that  the  judi¬ 
cial  system  of  every  country  is  two  or  three  hundred  years 
behind  its  progress  in  civilization.  Are  we  bound  to 
tins  by  any,  and  what  necessity  l 

*  Edm.  Spencer's  Suite  of  Ireland,  p.  1513.  Ed.  Hughes. 

t  4  Just.  353. 


65 


From  the  books  I  see  in  court,  I  presume  precedents 
will  be  quoted  of  English  indictments  of  similar  nature, 
concluding  as  at  common  law ;  and  from  that  it  will  be 
argued,  that  combinations  of  journeymen  are  indictable 
at  common  law.  But  the  answer  to  that  is  very  ob¬ 
vious.  The  offence  may  be  by  statute,  and  by  statute 
alone  ;  and  yet  the  indictment  as  at  common  law  is  the 
proper  form. 

When  an  offence  is  created  by  statute,  and  the  statute* 
gives  no  particular  penalty,  the  indictment  not  only  may, 
but  must,  be  laid  at  common  law,  and  a  general  judg¬ 
ment  will  be  given,  as  of  a  misdemeanor  at  common 
law.*  Such  precedents,  therefore,  cannot  prove,  that 
such  combinations  were  ever  supposed  to  have  been  in¬ 
dictable  by  virtue  of  the  common  law,  otherwise  than 
as  contraventions  of  the  English  statutes,  which  surely 
have  no  force  with  us. 

In  an  Irish  workf  of  great  authority,  which  has  been 
several  times  printed  in  England ,  there  is  a  passage 
which  very  clearly  illustrates  this  position.  “  If  any 
tradesmen,  artificers,  labourers,  or  servants,  shall  com¬ 
bine  and  conspire  not  to  work  at  rates,  fixed  by  the  jus¬ 
tices,  this  is  a  misdemeanor  at  common  law,  and  punish¬ 
able  with  fine  and  imprisonment.”  The  fixing  of  rates  by, 
the  justices  is,  by  virtue  of  the  statutes  of  labourers  in 
force  in  Ireland ,  being  fixed  by  statute.  The  combining 
to  violate  that  statute  is  an  offence  indictable  as  at  com¬ 
mon  law,  but  would  be  no  misdemeanor  without  the 
statute.  In  Rex  v.  Crisp, \  which  was  for  a  statutable 
conspiracy,  the  indictment  has  this  averment  in  the  body 

*  Rexv.  Smith ,  2  Doug.  441.  f  Bofton’s  Justice,  lib.  2.  c.  5.  $  24 
*  Trent.  P.  C.  S2- 
I 


G  6 


of  it ;  “  contra  leges  et  statuta  hujus  regni  anglice  ”  and 
yet  concludes  as  at  common  law,  viz.  contra  pacem. 

Through  all  the  counts  of  this  indictment,  it  is  to  be 
remarked,  that  there  is  but  one  overt  act  stated,  which 
can,  in  any  sense,  be  held  criminal,  and  that  is  con¬ 
spiring  to  refuse  to  work  unless  under  certain  condi¬ 
tions.  I  should  like  to  know  what  law  compels  a  man 
to  work  upon  terms  not  advantageous  or  agreeable  to 
him.  As  to  those  counts  which  contain  no  overt  act, 
but  merely  charge  the  defendants  with  conspiring  to  im¬ 
poverish  by  indirect  means,  and  impoverishing  by  indi¬ 
rect  means,  I  scarcely  think  them  worth  an  observa¬ 
tion.  They  have  all  the  kinds  of  uncertainty  which 
renders  an  indictment  a  nullity.  I  shall,  however,  leave 
the  indictment  to  be  analyzed  by  my  learned  colleague, 
who  will  do  more  justice  to  the  subject.  The  observa¬ 
tions  which  the  novelty  and  importance  of  this  cause 
have  drawn  from  me,  having,  on  mere  preliminary  to¬ 
pics,  gone  to  too  great  lengths,  a  few  general  remarks 
shall  close  what  I  have  to  say. 

Every  conspiracy  must  be  a  trespass,  that  is,  an  ille¬ 
gal  act  5  but  every  trespass  is  not  an  indictable  offence, 
but,  in  most  cases,  the  remedy  is  by  civil  action.  The 
only  injury  that  can  be  complained  of,  if  there  be  any, 
must  be  of  a  private  nature,  whether  it  be  to  JVhitess 
or  the  masters.  For  instance,  where  servants  or  ap¬ 
prentices  are  seduced,  there  the  remedy  is  by  civil  ac¬ 
tion,  not  by  indictment.* 

Before  the  mutiny  act  in  Engla?id,  soldiers  bound  to 
serve  the  king  in  his  wars,  might  quit  his  service,  un- 
less  jlagrante  hello  ;  but  the  masters  here  seem  to  think 


'  3  Burr.  1321. 


67 


the  journeymen  bound  to  serve  them  through  life,  for 
whatever  wages  they  choose  to  grant  them.  The  one 
party  must,  in  that  case,  be  more  than  kings,  and  the 
other  less  than  subjects. 

Whitess  had  become  one  of  their  society,  and  agreed 
to  their  regulations.  They  are  charged  with  combining 
not  to  work  with  Whitess  (for  such  is  the  substance  of 
it)  till  he  should  pay  the  fine  he  had  agreed  to  pay,  for 
breaking  their  rules  and  orders.  What  is  there  indicta¬ 
ble  in  all  that,  supposing  it  ever  so  true.  That  they 
will  not  work  for  the  employers  who  employ  him.  What 
is  that  more  than  saying  they  will  not  work  along  with 
him  who  is  not  contented  to  abide  by  them. 

I  think  the  law  of  Solon  applies  to  this  case,  which 
declared,  that  in  times  of  public  division  no  man  should 
be  neutral.  That  law  has,  perhaps,  more  wisdom  than 
appears  at  first  view.  It  tended  to  obviate  the  evils 
of  deception  and  dissimulation.  It  prevented  matters 
from  being  carried  to  extremity,  as  it  gave  each  party  a 
clear  knowledge  of  its  own  strength,  and  furnished  a  mea¬ 
sure  by  which  the  success  of  the  struggle  might  be  fore¬ 
seen,  and  useless  contest  avoided.  But  how  is  it  here  ? 
Whitess  violates  the  rules  and  ordinances,  to  the  ob¬ 
servance  of  which  he  had  bound  himself.  He  goes  to 
the  adversaries’  camp,  and  because  they  will  not  go  with 
him  they  are  indicted.  If  all  the  masters  were  on  one 
side,  and  all  the  workmen  on  the  other,  the  contest  must 
soon  end  sufficiently  to  the  advantage  of  the  employers. 
If  the  majority  of  the  workmen  were  content  with  their 
wages,  the  majority  would  be  harmless  ;  but  if  an  indi¬ 
vidual  will  seek  to  better  himself  at  the  expense  of  his 
fellows,  when  they  are  suffering  privation  to  obtain 
terms,  it  is  not  hard  that  they  leave  him  to  his  employ- 


68 


crs  ;  and  the  most  inoffensive  manner  in  which  they  can 
show  their  displeasure,  is  bv  shaking-  the  dust  off  their 
ieet,  and  leaving  the  shop  where  he  is  engaged.  If  they 
do  this  without  violence  or  fraud,  without  breach  of  the 
peace,  disorder  or  violation  of  any  contract,  duty,  or 
moral  obligation,  it  is  burlesque  to  call  that  a  conspira¬ 
cy  indictable. 

If  it  be  clear,  from  all  these  authorities,  that  such  in¬ 
dictments  are  not  conformable  to  our  laws  or  constitu¬ 
tion  ;  that  none  such  were  ever  known  in  England  till 
the  time  of  the  statutes  of  labourers ;  and  that  none 
such  were  ever  prosecuted  to  judgment  in  America ,  be¬ 
cause  there  never  were  any  such  statutes  ;  then  I  shall 
conclude  with  the  words  of  judge  Tucker,  an  author 
worthy  of  confidence,  “  that  neither  the  law  of  England , 
nor  that  of  any  other  country,  can  have  any  obligation 
in  this  state  ;  and  that  no  offence  created  by  statute  in 
England  can,  for  that  reason,  be  deemed  an  offence 
against  the  United  States;  and  that  all  statutory  offences 
against  the  laws  of  England,  are  therefore  only  to  be  re¬ 
garded  as  offences  in  that  kingdom,  and  not  as  having  any 
existence  either  in  the  state  of  Virginia ,  or  in  the  United 
States .”  The  same  may  surely  be  said  of  New-Tork, 
where  the  whole  body  of  the  English  statutes  has  been 
at  once  repealed,  and  where  the  statutes  which  created 
the  offence  here  indicted,  never  were  in  force  at  any 
time. 

I  have  only  now  to  apologize  to  the  court,  for  the  un¬ 
avoidable  length  of  my  argument,  to  return  my  thanks 
for  its  patient  indulgence,  and  to  commit  my  clients  to 
its  protection  ;  leaving  to  my  learned  associate  to  com¬ 
plete  the  argument  which  I  have  left  so  imperfect. 


69 


Mr.  Golden,  I  cannot  in  justice  to  myself  omit  on 
this  occasion  to  state  that  my  enagements  in  the  other 
court,  which  is  now  in  session  in  another  part  of  the 
Hall,  has  been  such  during  the  very  few  days  which 
have  elapsed  since  this  indictment  was  presented,  that  it 
has  been  utterly  impossible  for  me  to  pay  so  much  atten¬ 
tion  to  the  subject  under  consideration,  as  from  its  na¬ 
ture  would  be  requisite  for  a  satisfactory  discharge  of 
the  task  I  am  now  about  to  perform  ;  but  so  far  as  my 
clients  are  concerned,  they  can  have  no  cause  to  regret 
that  I  am  not  so  well  prepared  as  I  might  have  been, 
because  the  ability,  industry,  wit  and  ingenuity  of  the 
counsel  with  whom  they  have  done  me  the  honour 
to  associate  me,  has  not  left  it  possible,  as  I  think,  to  add 
much  to  what  he  has  said  in  support  of  their  cause. 

To  ensure  a  favourable  decision  from  the  court  on  our 
motion  to  quash  this  indictment  for  a  conspiracy,  I  shall 
think  it  sufficient  to  establish  these  two  principles  as  law  ; 

1st.  That  a  conspiracy  to  do  any  act,  is  not  indictable 
unless  the  act  to  be  done  is  unlawful ;  and, 

2d.  That  it  must  appear  upon  the  race  of  the  indict¬ 
ment  that  the  act  to  be  done  is  unlawful  ;  or,  according 
to  an  authority  to  which  I  shall  by  and  by  refer  the  court, 
whatever  circumstances  are  necessary  to  show  the  act 
unlawful  must  be  set  out,  which  indeed  is  but  a  corol¬ 
lary  from  the  first  proposition.  It  will  follow  that  if  the 
indictment  which  is  now  before  the  court,  does  charge  the 
defendants  with  a  combination  or  confederacy  to  do  an 
unlawful  act ;  or  if  the  indictment  does  not  show  that 
the  act  which  it  charges  them  with  having  conspired  to 
do  was  unlawful,  the  indictment  must  be  quashed. 

As  to  the  first  principle  which  I  have  mentioned,  it 
appears  to  me  a  self-evident  proposition,  and  I  shall  not 


70 


attempt  to  offer  any  argument  to  support  it  until  I  hear 
that  the  counsel  opposed  to  us  mean  to  deny  it.  If  they 
do  they  must  intend  to  maintain  its  converse,  that  is  to 
say,  they  must  endeavour  to  establish  that  every  combi¬ 
nation  or  confederacy,  to  do  a  lawful  act,  is  an  offence. 
It  seems  to  me  that  it  is  only  necessary  to  advert  to 
what  would  be  the  infallible  consequences  of  adopting 
such  a  principle  to  show  its  absurdity".  If  a  conspiracy, 
whether  to  do  right  or  wrong,  be  unlawful,  the  parties  to 
every  association  would  be  offenders  ;  all  our  religious, 
benevolent,  charitable,  and  political  societies  would  be 
violations  of  the  law.  And  I  do  not  know  why  upon 
this  principle  carried  to  its  extent,  men  who  unite  their 
means  and  exertions  for  mercantile  gain,  would  not  be 
criminals. 

The  numerous  counts  in  the  indictment  will,  for  the 
purposes  of  the  argument  which  I  am  about  to  offer,  ad¬ 
mit  of  a  classification ;  and  I  shall  consider  them  under 
the  following  arrangement : — The  first,  second,  third 
and  eighth  counts  may  form  one  class ;  the  fourth,  fifth 
and  ninth  counts  form  a  second  class  ;  and  the  sixth  and 
seventh  counts  will  have  a  separate  consideration. 

The  1st,  2d,  3d,  and  8th  counts  have  each  a  similar 
recital,  by  which  the  offence  charged  in  each  of  these 
counts  against  the  defendants,  is  introduced.  This  reci¬ 
tal  states  that  the  defendants,  intending  to  form  a  club, 
and  to  make  illegal  by-laws,  and  to  extort  money,  did 
conspire. 

It  is  to  be  observed  that  here  is  no  charge  against  the 
defendants.  This  recital  is  mere  matter  of  inducement. 
It  is  not  said  that  they  conspired  to  form  a  club,  or  to 
make  illegal  by-laws,  or  to  extort  money  ;  but  on  the 
contrary,  the  conspiracy  is  charged  to  have  taken  plage 

o 

O 


71 


subsequently  to  these  intentions,  which,  from  aught  that 
appears  on  the  indictment,  were  harboured  by  the  de¬ 
fendants,  separately  and  individually,  before  the  con¬ 
spiracy  was  formed.  Nor  is  it  stated  that  the  conspira¬ 
cy  was  for  either  of  these  illegal  purposes,  if  they  were 
illegal,  but  for  totally  other  objects.  It  cannot  be  con¬ 
sidered,  I  think,  that  the  defendants  are  to  be  put  to  an¬ 
swer  these  recitals  as  criminal  accusations,  because  there 
is  nothing  in  the  recitals  which  charge  any  thing  against 
the  defendants  as  an  offence.  On  the  contrary,  all  that 
is  said  in  the  recitals  is  but  to  introduce  the  charge  of 
conspiracy  which  immediately  follows  the  recital  in  each 
count. 

But  let  us  suppose  the  matter  contained  in  the  recitals 
was  put  in  the  form  of  a  charge  in  the  most  positive  and 
direct  manner.  As,  for  instance,  if  the  indictment  had 
said,  that  the  defendants  did  intend  to  form,  a  club. 
First,  let  me  ask,  is  an  intention  of  any  kind,  though  it 
be  to  commit  ever  so  atrocious  an  offence,  punishable 
by  the  common  law  P  I  think  I  may  venture  to  answer 
that  it  is  not.  Then  much  less  can  an  intention  to  form 
a  club  be  so.  And  however  immoral  it  may  be  in  an 
individual,  or  any  number  of  individuals,  to  have  an  in¬ 
tent  to  pass  illegal  by-laws,  or  to  extort  money,  it  is  an 
immorality  for  which  they  are  not  answerable  to  any 
human  laws. 

Another  objection  to  this  part  of  the  indictment  is, 
that  if  the  public  prosecutor  had  intended  to  make  this 
intent  to  pass  illegal  by-laws,  and  to  extort  money,  a 
part  of  the  substance  of  his  charges  against  the  defend¬ 
ants,  he  should  have  set  out  in  his  indictment  what  ille¬ 
gal  laws  they  did  intend  to  pass,  that  the  court  might 
see  that  they  were  illegal ;  and  he  should  also  have  sta- 


*  ' 


72 


tecl  by  what  means  they  did  intend  to  extort  money.  If 
there  was  a  direct  charge  that  the  defendants  did  pass 
illegal  by-laws,  and  that  they  did  extort  money,  the  in¬ 
dictment  could  not  be  supported  without  a  specification 
of  the  laws  passed,  and  of  the  means  of  extortion,  as  I 
shall  by  and  by  show  to  the  court  when  I  come  to  con¬ 
sider  the  counts  which  I  have  arranged  in  a  second  class. 
Certainly,  then,  this  charge  of  an  intent,  and  that  introdu¬ 
ced  by  way  of  recital  only,  can  never  be  sufficient. 

I  think  it  will  appear  from  what  I  have  said,  that  in 
these  recitals  there  is  no  crime  sufficiently  charged 
against  the  defendants.  And  I  beg  the  court  to  observe, 
that  the  recitals  are  entirely  independent  of  wrhat  may 
be  called  the  substantial  parts  of  the  indictment.  As 
they  can  in  no  manner  assist  the  charge  of  conspiracy, 
so  neither  can  they  derive  any  support  from  that  charge. 
The  recitals,  and  the  charge  of  conspiracy,  are  as  little 
connected  as  if  they  formed  separate  counts.  Indeed, 
the  recitals  are  in  opposition  to  the  charges  ;  for  the  re¬ 
citals  imply  that  the  defendants  intended  to  do  one  thing, 
and  they  are  charged  with  having  conspired  to  do  an¬ 
other.  They  intended  to  form  a  club  to  make  illegal  by¬ 
law's  to  extort  money,  and  they  conspired  not  to  work  in 
the  same  shop  with  one  who  wras  not  a  member  of  their 
society  ;  nor  with  any  one  who  infringed  their  rules,  un¬ 
til  he  paid  his  fine  ;  nor  with  any  master  who  employed 
more  than  two  apprentices. 

Dismissing  the  recitals  to  these  four  counts,  I  shall 
proceed  to  an  examination  of  the  direct  charge  contain¬ 
ed  in  each,  with  a  view  to  show  that  the  acts  which  it  is 
said  the  defendants  conspired  to  perform  are  not  illegal 
acts,  and  therefore  a  conspiracy  to  do  these  acts  is  not 
indictable. 


73 


The  first  count  charges,  that  the  defendants  conspi¬ 
red  and  agreed  that  they  would  not  work  with  any  jour¬ 
neyman  who  was  not  a  member  of  their  society.  The 
second,  that  they  would  not  work  with  any  one  who  in¬ 
fringed  their  by-laws.  The  third  contains  the  same 
charge,  with  the  addition  that  they  would  not  work  with 
an  infractor  of  their  laws  till  he  paid  a  fine.  And  the 
eighth  count  charges,  that  they  would  not  work  for  any 
master  who  employed  more  than  two  apprentices. 

Here  let  it  be  observed,  that  the  defendants  are  not 
charged  with  having  conspired  to  do  any  act,  much  less 
an  unlawful  act.  The  agreement  among  them,  as  the 
indictment  states,  is  not  to  act.  Now  will  it  be  said 
that  it  would  have  been  unlawful  for  these  defendants  or 
any  other  set  of  men,  to  have  come  to  a  resolution,  or 
to  an  agreement,  if  you  please,  that  they  would  net 
work  at  all  ?  Let  us  know  where  is  the  law  that  savs  a 
man  once  a  labourer  shall  for  ever  remain  so  ;  nay,  that  he 
shall  for  ever  labour.  There  is  no  such  tyrannical  rule 
in  this  country.  And  if  men  may  resolve  that  they  will 
abandon  their  trade  and  live  idle,  why  may  they  not 
make  a  qualified  resolution  of  this  nature  ?  Why  may 
they  not  say  that  they  will  only  work  under  circumstan¬ 
ces  agreeable  to  themselves  ? 

But  to  examine  the  substances  of  the  charges  in  these 
respective  counts  more  particularly.  So  far  from  ha¬ 
ving  been  any  thing  illegal  or  immoral  in  the  conspiracy 
or  agreement  to  which  these  defendants  were  parties, 
the  court  will  find  that  their  confederacy,  and  the  rules 
which  they  adopted,  were  not  only  legal  but  highly  me¬ 
ritorious. 

Like  most  other  societies  of  the  same  nature,  the  jour¬ 
neymen  shoemakers’  society  is  a  charitable  institution. 

K 


74 


They  raise  a  fund,  which  is  sacred  to  the  use  of  their 
helpless  or  unfortunate  members,  and  to  the  relief  of  the 
widows  and  orphans  of  their  departed  brethren.  Their 
by-laws  are,  each  member  shall  contribute  to  this 
fund.  And  to  induce  every  one  to  join  the  society, 
while  by  his  labour  he  may  make  something  to  spare  for 
their  fund,  they  refuse  to  work  with  any  one  who  is  so 
wanting  in  charity  as  not  to  join  them.  And  as  a 
sanction  to  their  laws,  they  have  also  declared  that  they 
will  not  work  with  any  who  shall  break  their  by-laws, 
that  is,  who  shall  refuse  to  pay  his  dues,  till  he  has  paid 
a  fine.  Who  will  say  that  an  association  of  this  nature 
is  illegal  ?  What  human  laws  can  presume  to  punish  acts, 
which,  according  to  the  laws  of  God  are  deserving  of 
rewards  even  in  heaven  ?  or  can  it  be  said  that  the  reso¬ 
lution  not  to  work  for  a  master  who  employed  more  than 
two  apprentices,  was  unpraiseworthyr  ?  The  masters 
were  in  the  habit  of  crowding  their  shops  with  more  ap¬ 
prentices  than  they  could  instruct.  Two  was  thought 
as  many  as  one  man  could  do  justice  by^.  The  journev- 
men  shoemakers  therefore  determined  to  set  their  faces 
against  the  rapacity  of  the  masters,  and  refused  to  work 
for  those  who  were  so  unjust  as  to  delude  with  the  pro¬ 
mise  of  instruction  which  it  was  impossible  they  could 
give.  In  England ,  the  legislature  has  interfered  on  this 
point,,  and  has  by  statute  limited  the  number  of  appren¬ 
tices  which  certain  tradesmen  mayT  take. 

It  is  to  be  observed,  that  neither  of  these  counts  charge 
that  the  design  of  the  defendants  was  to  raise  their  wages. 
And  though  it  should  be  admitted  that  a  conspiracy  to 
raise  their  wages  would  subject  the  defendants  to  an  in- 


75 


dictment,  yet  I  doubt  if  any  authority  can  be  found  to 
support  an  indictment  for  charges  like  these. 

The  4th,  5th,  and  9th  counts  form  another  class,  my 
objections  to  which  I  shall  proceed  to  submit  to  the 
court. 

The  4th  count  charges,  that  the  defendants,  intending 
to  injure  E.  W.  conspired,  by  wrongful  and  indirect 
means  to  impoverish  him,  and  hinder  him  from  follow¬ 
ing  his  trade,  and  that  they  did,  in  pursuance  of  their 
conspiracy,  indirectly  hinder  him  from  following  his 
trade. 

The  5th  count  varies  from  the  fourth  only  in  this, 
that  it  does  not  charge  that  the  defendants  effected  the 
design  of  their  conspiracy.  And  the  9th  count  is  simi¬ 
lar  to  the  fifth,  except  that  it  charges  that  the  conspira¬ 
cy  was  to  injure,  by  indirect  means,  certain  master  work¬ 
men  who  are  named. 

Now  it  may  well  have  been  that  the  defendants  in¬ 
tended  to  injure  the  persons  named  in  these  counts,  by 
indirect,  vet  by  perfectly  lawful  means.  If  they  had 
agreed  that  they  would  work  better  or  cheaper  than  the 
persons  named,  this  would  have  been  an  indirect  means 
of  injuring  them.  If  they  had  combined  in  the  inven¬ 
tion  of  some  improvement  of  the  cordwainer’s  art, 
which  should  have  entitled  them  to  a  patent,  this  would 
have  given  the  defendants  a  monopoly  which  could  not 
fail  of  being  an  indirect  means  of  injuring  all  who  were 
not  sharers  in  it.  If  they  had  agreed  to  increase  the 
number  of  master  workmen  in  our  city  by  inducing 
those  who  are  now  settled  elsewhere  to  take  their  abode 
with  us  ;  or,  if  the  defendants  had  agreed  that  they 
would  no  longer  work  as  journeymen,  but  establish  them¬ 
selves  as  masters.— All  these  would  have  been  indirect 


76 


means  of  impoverishing  and  injuring  other  persons  en¬ 
gaged  in  the  trade.  But  will  it  be  said  that  indirect 
means  like  these  would  be  unlawful  means  ?  I  am  sure 
it  will  not.  It  follows,  then,  that  the  defendants  are  not 
charged  by  either  ot  these  counts,  with  a  conspiracy  to 
do  an  unlawful  act. 

But  if  we  should  say  that  by  the  terms  wrongful, 
wicked,  and  indirect  means,  are  to  be  intended  unlawful 
means,  then  there  remains  the  important  objection,  that 
the  indictment  does  not  specify  the  necessary  circum¬ 
stances  to  show  that  the  intended  means  were  unlawful. 

In  Hale's  History  of  the  Pleas  of  the  Crown ,  it  is 
said,  that  an  indictment  is  nothing  else  but  a  plain,  brief, 
and  certain  narrative  of  an  offence  committed  by  any 
person,  and  of  the  necessary  circumstances  that  concur 
to  ascertain  the  fact  and  its  nature.* 

In  Bacon's  Abr.  tit.  Indictment ,  G.  where  the  court 
will  find  a  number  of  authorities  quoted  to  the  same 
point,  it  is  said  that  an  indictment  must  expressly  allege 
every  thing  material  in  the  description  of  the  substance, 
nature,  and  manner  of  the  crime  ;  for  no  intendment 
shall  be  admitted  to  supply  a  defect  of  this  kind. 

Again,  in  the  same  book,  (iibi  supra ,)  it  is  said  that 
the  whole  fact  ought  to  be  set  forth  with  such  certainty 
that  it  may  judicially  appear  to  the  court  that  the  in- 
dicters  have  not  gone  upon  insufficient  premises. 

Conformably  to  these  principles,  it  has  been  decided, 

“  that  an  indictment  of  perjury,  not  showing  in  what 
“  manner ,  and  in  what  court,  the  false  oath  was  taken,  is 
“  insufficient.”  So  in  The  King  v.  Mason, f  it  was  adjudg¬ 
ed,  that  an  indictment,  charging  the  defendant  with  ob¬ 
taining  money  by  false  pretences,  was  insufficient,  as  it 

*  2  Hale's  It.  P.  C.  169.  f  2  Term  Step.  5S1. 


77 


did  not  show  what  the  false  pretences  were.  In  the 
case  of  Rex  v.  Munonf  an  indictment  for  procuring  a 
note  by  false  tokens,  was  held  bad,  because  it  did  not 
specify  what  the  false  tokens  were. 

The  idea  of  indicting  these  defendants  upon  these  ge¬ 
neral  words,  it  is  very  probable  has  been  taken  by  the 
person  who  drew  this  indictment  from  an  expression  in 
Hawkins's  Pleas  of  the  Crown ,  which  I  have  no  doubt 
will  be  often  quoted  by  the  adverse  counsel ;  for  I  be¬ 
lieve  no  precedent  for  such  an  indictment  can  be  pro¬ 
duced.  Serjeant  Hawkins f  says,  that  a  person  may  be 
punished  for  confederating  “  by  indirect  means  to  im¬ 
poverish  a  third  person.”  But  does  it  follow  that  by 
these  general  expressions,  Hawkins  meant  to  say  that 
the  confederacy  would  be  unlawful,  though  the  propo¬ 
sed  indirect  means  were  lawful  ?  Much  less  can  it  fol¬ 
low  that  he  intended  to  say  that  it  was  not  necessary 
to  specify  the  means  in  the  indictment.  Suppose  there 
were  a  statute  which  enacted,  that  to  impoverish  an¬ 
other  by  indirect  means,  should  be  a  crime,  would  it 
not  be  sufficient  to  pursue  in  the  indictment  the  words  of 
the  statute,  and  to  omit  in  an  indictment  in  such  a  sta¬ 
tute  what  were  the  indirect  means  to  which  the  defend¬ 
ant  had  resorted  ? 

If  general  charges  of  this  nature  could  be  supported, 
no  man  put  to  answer  them  would  know  from  his  accusa¬ 
tion  how  to  prepare  for  his  defence  ;  for  he  might  not  learn, 
till  he  heard  it  from  the  mouths  of  his  accusers  on  his 
trial,  what  were  the  circumstances  alleged  against  him. 

Reserving  any  further  observations  on  these  counts  of 
the  second  class  till  I  have  had  the  pleasure  of  hearing  the 
learned  counsel  concerned  for  the  prosecution,  I  shall  pro- 

*  Sir  a.  1127. 


78 


ceecl  to  submit  to  the  court  some  remarks  on  the  sixth  count. 
Supposing  it  to  be  unlawful  for  tradesmen  to  conspire 
to  raise  their  wages,  let  me  beg  the  court  to  remark  that 
there  is  no  such  charge  against  the  defendants  in  this 
count.  The  charge  is  of  a  very  different  nature.  It  is, 
that  they  agreed  that  they  would  not  work  under  certain 
prices.  Now  let  me  ask,  if  these  persons  had  agreed 
not  to  work  at  all,  is  there  in  this  country  a  law  to 
compel  a  man  to  work  if  he  chooses  to  remain  idle  ? 
What  law  is  there  to  punish  the  lazy  lawyer,  the  negli¬ 
gent  merchant,  or  sleepy  parson  ?  If  there  be  none  for 
persons  of  these  classes,  by  what  authority  can  you 
punish  the  idle  shoemaker?  And  if  a  man  may  lawfully 
determine  to  live  in  idleness,  why  may  he  not  make  qua¬ 
lified  his  resolution  not  to  work  but  on  certain  condi¬ 
tions  ?  Why  is  it  not  lawful  for  him  to  say  I  will  work 
if  you  will  pay  me  at  a  certain  rate,  but  if  you  will  not 
do  this  you  must  go  without  my  work  ?  There  is  no 
law  in  this  country,  and  I  believe  I  might  say  there  is  no 
law  on  earth,  which  denounces  as  illegal  such  conduct. 
There  is,  therefore,  no  charge  in  this  count  to  do  an  ille¬ 
gal  act;  but  objections  which  have  been  made  to  other 
counts  again  occur  as  applicable  to  this.  In  the  language 
of  an  authority  I  have  quoted,  “  the  circumstances  neces¬ 
sary  to  constitute  the  imputed  crime  are  not  set  out.” 
One  of  these  circumstances  is,  that  the  defendants  were 
not  content  to  work  for  usual  wages.  Yet  there  is  no 
specification  of  what  the  usual  wages  were,  nor  is  it  shown 
that  the  prices  which  they  had  limited  for  themselves 
were  over  these  usual  wages.  It  will  not,  I  presume,  be 
contended  that  it  would  have  been  a  crime  if  the  defend¬ 
ants  had  agreed  that  they  wrould  be  content  with  less 
than  the  usual  rates.  How  does  it  appear,  then,  that  their 


79 


prices  were  not  below  what  was  the  customary  compen¬ 
sation  ?  We  must  recollect  that  the  authorities  to  which 
I  have  already  referred  the  court,  show,  that  in  an  in¬ 
dictment,  nothing  is  to  be  taken  by  intendment.  It  is 
worthy  of  remark,  that  the  framer  of  this  indictment 
was  so  conscious  that  he  was  not  charging  the  defend¬ 
ants  with  a  conspiracy  to  do  an  unlawful  act,  that  he  has 
departed  from  the  usual  phraseology  in  this  respect,  and 
omitting  the  word  unlawfully,  has  contented  himself  with 
alleging  that  the  defendants  wickedly  and  corruptly 
conspired. 

I  have  said  that  this  count  does  not  expressly  charge 
the  defendants  with  a  conspiracy  to  raish  their  wages ; 
and  that  no  such  charge  can  be  made  out  by  implication  ; 
and  that  of  course  the  allegation  that  they  would  not 
work  under  certain  prices,  cannot  amount  to  a  charge 
that  they  intended  to  raise  their  wages  above  the  usual 
prices.  But  I  shall  admit,  for  the  sake  of  argument,  that 
this  indictment  does  contain,  in  legal  form,  an  accusation 
that  the  defendants  did  unlawfully  conspire  to  raise  the 
price  of  their  labour  above  what  were  the  customary 
wages  at  the  time  of  the  conspiracy.  And  this  will 
bring  us  to  an  important  consideration  ;  because  I  shall 
contend,  and  I  hope  to  satisfy  the  court,  that  neither  by 
the  common  law  of  England ,  nor  by  the  laws  of  this 
country,  was  such  a  conspiracy  punishable ;  for  by 
neither  the  one  nor  the  other  would  it  be  a  conspiracy  to 
do  an  illegal  act. 

A.  conspiracy  to  do  an  act  which  is  forbidden  by  the 
law,  is  a  conspiracy  to  do  an  illegal  act,  and  therefore 
such  a  conspiracy  is  a  crime.  And  every  indictment  for 
such  a  conspiracy  must  be  an  indictment  at  common 
law,  and  not  an  indictment  upon  the  statute  ;  because  the 


80 


conspiracy  is  a  common  law  offence ;  the  statute  only 
giving  to  the  act  to  be  done  that  unlawful  character 
which  is  necessary  to  make  the  conspiracy  illegal. 

It  is  only  on  this  ground  that  conspiracies  to  raise 
wages  are  indictable  at  common  law  in  England .  For 
1 1  believe  I  may  venture  to  assert,  that  no  instance  of  an 
indictment  for  a  conspiracy  of  this  nature  can  be  found 
that  was  prior  to  the  statutes  passed  in  England  for  re¬ 
gulating  the  wages  of  her  craftsmen. 

I  have  traced  these  statutes  for  regulating  wages  as 
far  back  as  to  the  beginning  of  the  fourteenth  century,  33 
Edzv.  I.  Other  statutes  on  the  same  subject  were  pass¬ 
ed  in  the  reigns  of  Rich.  II.  Edw.  III.  and  of  Elizabeth , 
vid.  Keb.  stat.  69.  2  Reev.  Hist.  Eng.  Lazv ,  388,  389 

4  Burns's  ynst.  164. 

These  statutes,  or  some  of  them,  made  it  unlawful,  not 
only  for  an  individual  craftsman  to  ask  or  receive  more 
than  a  specified  price  for  his  labour  ;  but  it  made  it  also 
illegal  for  an  employer  to  give  more  than  at  the  esta¬ 
blished  rates.  According,  then,  to  the  principles  for 
which  we  contend,  it  having  become  by  statute  an  illegal 
act  for  one  or  more  individuals  to  raise  their  wages,  a 
conspiracy  to  do  that  act  became  an  offence  punishable  by 
the  common  law  of  England. 

There  is  not  an  authority  in  the  English  books  which 
is  not  consistent  with  this  principle.  The  case  of  The 
King  v.  Wise ,  in  8  Mod.  whether  it  be  a  good  or  bad  au¬ 
thority,  so  far  from  being  against  us,  is  in  our  favour; 
because,  it  appears  from  the  report  of  that  case,  that  the 
indictment  was  grounded  on  the  statute,  though  it  con¬ 
cluded  at  common  law.  The  text  of  Hazvkins,  and  the 
notes  upon  it,  are  all  reconcileable  to  this  doctrine,  as 
are  also  all  the  authorities  which  are  quoted  in  Hazvkins 
to  support  the  principles  he  there  layrs  down. 


81 


In  the  Crown  Cir.  Comp,  page  257.  at  the  foot  of  an 
indictment  at  common  law  for  a  conspiracy  , among  work¬ 
men  to  raise  their  wages,  is  given,  in  a  note,  the  statute 
on  which  the  indictment  was  founded  ;  thereby  manifest¬ 
ing,  I  think,  that  the  author  of  that  book  thought  that 
no  such  indictment  could  have  been  supported  without 
the  statute. 

In  Douglas’s  Reports ,  424.  The  King  v.  Smith  and 
others ,  is  the  case  of  an  indictment  for  obstructing  the 
execution  of  powers  granted  by  statute  for  making  a 
horse-towing  path  on  the  River  Thames ,  which  it  is  de¬ 
cided  need  not,  and  ought  not,  to  conclude  against  the 
form  of  the  statute,  on  the  ground  that  any  sthing  done 
,  in  contravention  of  a  statute  is  an  illegal  act,  and  as  such 
punishable  at  the  common  law. 

It  is  in  vain,  therefore,  for  the  gentlemen,  to  show 
us  English  precedents  for  conspiracies  to  raise  wages, 
concluding  at  common  law,  or  to  cite  to  us  authorities 
which  say  that  such  indictments  may  be  maintained. 
We  admit  all  this.  But  we  say,  that  without  the  En¬ 
glish  statutes,  which  make  the  act  which  is  the  object  of 
the  conspiracy  illegal,  no  such  indictments  could  be  sup¬ 
ported  in  the  English  courts. 

But  a  second  position  which  I  have  taken,  and  which 
I  shall  now  attempt  to  support,  is,  that  a  conspiracy  of 
this  nature  may  have  been  criminal  by  the  common  law 
of  England ,  independently  of  her  statutable  provisions, 
yet  that  that  part  of  her  common  law  was  never  in  force 
in  this  country. 

I  presume  that  I  may  take  for  granted,  that  this  coun- 
try,  when  it  was  settled  by  our  English  ancestors  was  to 
be  considered,  in  relation  to  the  parent  state,  as  a  desert 
and  uncultivated  country,  claimed  by  right  of  occupan- 


T. 


82 


t  v  only.  And  that  the  laws  of  colonization  which  ap¬ 
ply  to  emigrations  from  a  parent  state  to  such  a  country, 
were  applicable  to  those  who  first  planted  themselves  on 
these  shores  as  subjects  of  the  English  monarchy.  For 
if  this  were  to  be  considered  as  a  conquered  country, 
our  common  law  would  be  the  customs  of  the  Mohawks, 
or  of  the  Dutch  ancestry  ;  or  if  this  were  a  ceded  coun¬ 
try,  we  should  have  the  act  of  cession  or  treaty  to  ap¬ 
peal  to,  to  ascertain  what  laws  were  thereafter  to  govern. 

If  we  are  to  be  considered  as  the  representatives  of 
colonists,  claiming  by  right  of  occupancy,  our  ancestors 
brought  with  them  only  “  such  of  the  laws  of  the  parent 
“  state,  as  were  applicable  to  their  own  situation,  and  the 
“  condition  of  an  infant  colony.” 

If  it  were  part  of  the  common  law  of  England ,  when 
our  ancestors  emigrated  to  this  side  of  the  Atlantic ,  that 
workmen  should  not  combine  to  raise  their  wages,  who 
can  say  that  this  was  a  part  of  the  common  law  which 
our  forefathers  brought  with  them  ?  Will  it  be  contend¬ 
ed  that  such  a  rule  was  applicable,  to  their  situation,  ol¬ 
io  the  condition  of  an  infant  colony  ?  No  man  will  con¬ 
tend,  I  think,  that  a  law  of  this  kind  can  be  beneficial  in 
a  society,  until  its  members  become  numerous,  and  its 
arts  and  manufactures  have  arrived  to  a  state  which  they 
can  only  attain  after  they  have  progressed  through 
ages.  The  infant  colony,  then,  established  by  our  an¬ 
cestors,  was  not  governed  by  the  law  now  attempted 
to  be  enforced,  if  it  were  a  part  of  the  English  com¬ 
mon  law.  And  if  it  was  not  the  law  of  the  colony  in 
its  infancy,  no  such  law  could  afterwards  be  imposed 
on  the  colonists  by  the  customs  or  usages  of  the 
mother  country.  And  it  certainly  has  not  been  by  any 
legislative  act  either  of  the  parent  state,  or  of  the  colony. 


83 


That  the  whole  of  the  common  law  of  England  is  no 
in  force  in  this  state,  cannot  be  denied.  The  constitu¬ 
tion  of  the  state  adopts  a  part  of  the  common  law  only. 
By  the  thirty-fifth  section  of  the  constitution,  it  is  de¬ 
clared,  that  such  parts  of  the  common  law  of  England , 
as  made  a  part  of  the  colonial  law  on  the  19th  of  Aprils 
1773,  should  be  law  in  this  state.  Now,  then,  we  call 
upon  the  adverse  counsel  to  show  us  that  this  common 
law  of  England,  which  they  would  now  enforce  here, 
was  ever  a  part  of  our  colonial  law.  To  satisfy  the  court 
that  it  was  so,  they  should  have  shown  that  at  some  time, 
it  had  been  enforced.  But  although  hundreds  of  years 
have  passed,  there  is  no  instance  of  an  attempt  to  en¬ 
force  such  a  rule.  There  is  not  even  a  tradition  of 
there  having  been  a  prosecution  of  this  nature.  Can  it 
be  believed,  that  combinations  of  this  kind  have  not  be¬ 
fore  existed  ?  And  can  there  be  stronger  evidence  that 
this  was  never  a  part  of  the  colonial  or  common  law  of 
the  state,  than  that  no  such  prosecution  under  the  juris¬ 
diction  of  our  courts  has  ever  before  been  heard  of? 

I  have  had  an  opportunity  of  examining  the  re¬ 
cords  of  the  criminal  proceedings  of  our  tribunals  for  a 
great  number  of  years  back.  I  have  found  an  informa¬ 
tion  which  was  preferred  in  the  year  1741,  against  cer¬ 
tain  bakers,  for  combining  not  to  bake  bread  but  on  cer¬ 
tain  terms.  This  indictment,  however,  concludes  con¬ 
trary  to  the  form  of  the  statutes.  And  it  appears  that 
no  judgment  was  ever  rendered  upon  it,  so  that  it  can¬ 
not  be  appealed  to  as  an  authority  on  either  side  ;  or  if 
it  is  in  favour  of  either,  it  must  be  the  defendants,  be¬ 
cause  it  appears  that  the  crime  there  charged  was  laid  as 
an  offence  against  some  statutes,  and  not  as  an  offence  at 
common  law. 


84 


I  have  applied  these- observations 'to  the  sixth  count, 
because  this  is  the  only  count  on  which  the  question, 
whether  it  be  unlawful  for  workmen  to  raise  their  wages, 
can  arise.  I  must  detain  the  court  a  few  minutes  longer 
with  some  observations  on  the  seventh  count,  which  is 
the  only  one  that  remains  to  be  examined. 

This  count  must  follow  the  fate  of  the  sixth  count, 
because  every  objection  which  has  been  made  to  that 
count,  applies  to  this.  But  there  are  some  other  objec¬ 
tions  to  this  count  which  I  will  briefly  notice  to  the  court. 
The  charge  is,  that  the  defendants  conspired  and  agreed 
that  they  would  endeavour,  by  threats,  to  injure  E.  W. 
and  prevent  his  working.  It  is  not  said  that  the  de¬ 
fendants  would  prevent  E.  W.  from  working  ;  nor  is  it 
stated  what  kind  of  threats  were  to  be  made  use  of. 
It  is  not  stated  that  their  resolution  to  threaten  E. 
W.  was  ever  communicated  to  him,  or  that  he  ever 
knew  any  thing  about  it.  How,  then,  could  this  resolu¬ 
tion  injure  him  ?  If  there  be  any  force  in  the  rule,  that 
whatever  circumstances  are  necessary  to  constitute  the 
crime  must  appear,  certainly  this  count,  when  tested  by 
this  rule,  must  be  bad. 

Finally,  there  is  one  objection  which  applies  to  this  as 
well  as  to  some  other  of  the  counts,  which  is,  that  it 
does  not  appear  with  sufficient  certainty,  who  were  to  be 
injured  by  the  conspiracy.  This  objection  arises  out  of 
a  rule  which  is  laid  down  in  Haxvk.  P.  C.  c.  25.  s.  71. 

“  that  not  only  the  defendants,  but  all  other  persons 
“  mentioned  in  the  indictment,  must  be  described  with 
“  convenient  certainty.”  The  last-mentioned  counts  aver, 
that  the  conspiracy  was  to  injure  the  defendants’  mas¬ 
ters,  or  other  citizens.  Let  me  ask,  who  are  the  defend¬ 
ants’  masters  ?  Will  the  court  recognise  any  set  of  men 


85 


as  the  masters  of  these  defendants  ?  No  :  They  are  poor, 
honest,  labouring  workmen,  it  is  true,  but  not  slaves. 

I  have  taken  up  more  of  the  time  of  the  court  with 
this  discussion  than  I  expected  to  have  done.  But  I  will 
not  further  trespass  on  their  patience  by  any  long  apolo¬ 
gy  for  having  done  so. 

Riker ,  District  Attorney,  for  the  prosecution. 

May  it  please  the  Court, 

Two  days  have  been  consumed  in  , argument  by  the 
defendants’  counsel.  We  shall  not  require  so  many 
hours. 

Our  positions  are  these  : 

1.  That  the  common  law  is  the  same  in  this  country 
as  in  England ,  with  no  other  exceptions  than  those  spe¬ 
cified  and  declared. 

2.  That  by  the  common  law  of  England ,  the  conspira¬ 
cies  stated  in  the  indictment  are  criminal. 

3.  That  the  counts  are  good  both  in  form  and  sub¬ 
stance. 

But  even  if  they  were  not  so,  this  motion  ought  not  to 
prevail.  Indictments  for  conspiracy  are  never  quash¬ 
ed.  For  "his,  I  refer  to  the  case  cited  from  8  Mod.  321. 
although.  I  do  not  mean  to  rely  upon  that  book  generally 
as  the  highest  authority,  nor  to  press  it  much  upon  the 
court. 

If  one  count  alone  in  an  indictment  be  good,  though 
all  the  rest  be  bad,  the  court  will  not  quash  the  bill. 
Nor  is  the  court  bound  in  any  case,  ex  debito  justicice 
to  quash  any  indictment,  but  will  in  this  case  use  its 
sound  discretion.* 

*Doug.  703.  Grant  v.  Astle.  3  Boc,  .Ur,  tit.  Indictment,  page  573.  letter 
It.  4  Hawk.  83. 

3 


86 


If  there  be  a  doubt,  it  is  the  soundest  course  not  t« 
quash  an  indictment,  as  it  precludes  investigation,  and 
prevents  a  decision  in  the  last  resort. 

As  to  the  general  question  of  the  adoption  of  the 
common  law,  my  argument  is  this  :  The  province  of 
New-Tork  was  a  conquered  and  ceded  country,*  and  it 
is  not  disputed  that  in  such  case  the  ancient  law  remains 
until  changed  by  the  new  sovereign. j  All  that  is  incum¬ 
bent  upon  us  is,  to  show  that  that  was  done,  and  that  in 
place  of  the  former  laws  of  the  colony,  the  common 
law  of  England  was  established,  and  fully  and  entirely 
adopted. 

To  prove  that  the  common  law  of  England  was  so 
established  as  the  law  of  the  colony  of  Nexv-Tork,  I  rely 
on  the  evidence  of  the  journals  of  the  assembly.:): 

The  patent  to  his  Excellency  the  Governor,  (page  5.) 
contains  a  grant  of  the  common  law  of  England ,  and 
every  defect  or  imperfection  of  their  law  was  to  be  sup¬ 
plied  by  recurrence  to,  and  adoption  of,  the  laws  of  En¬ 
gland.^ 

As  to  what  one  of  the  counsel  for  the  defendants  has 
urged  with  so  much  wit,  vivacity,  and  subtilty,  touching 
the  unfitness  of  the  common  law,  I  appeal  to  the  very 
authority  of  those  fathers  of  our  revolution  w  hose  shades 
he  has  invoked.  In  that  great  act  wherein  we  justify  our 
revolution,  thev  are  so  far  from  complaining  in  terms  of 
invective  against  the  common  law,  that  they  set  it  forth 
as  their  best  birthright ;  and  their  loudest  complaint  is 
that  they  were  deprived  of  its  valuable  protection  and  its 

*  5  /lame’s  Ever,  c  G4.  p  5. 

t  1  Jila.  Com.  108,  109.  Coiop.  204.  Campbell  v.  JlalL 

4  1  Journal  of  Assembly,  p.  5. 

§  Laivs  of  New-York,  by  Bradford,  1091.  p.  15,  16. 


87 


beneficial  provisions  ;  and  if  that  privation  was  so  great 
an  evil  as  to  be  a  valid  cause  of  a  war  and  a  revolution, 
we  must  conclude  that  they  entertained  a  very  different 
sentiment  respecting  it  from  that  of  the  counsel  who 
has  appealed  to  them. 

Since,  then,  the  sovereign  can  legislate  in  a  ceded  or 
conquered  country,  the  patent  of  the  King,  according  to 
the  authority  of  Lord  Mansfield ,  is  conclusive.* 

The  constitution  of  the  state  of  Nexv-Tork  runs  thus  : 
“  And  this  convention  doth  further,  in  the  name  and  by 
“  the  authority  of  the  good  people  of  this  state,  ordain 
“  and  declare ,  that  such  parts  of  the  common  law  of  En- 
“  gland  and  Great  Britain ,  and  of  the  acts  of  the  legis- 
“  lature  of  the  colony  of  Nexu-Tork ,  as  together  did  form 
“  the  law  of  the  s,aid  colony  on  the  nineteenth  day  of 
“  April ,  in  the  year  of  our  Lord  one  thousand  seven 
“  hundred  and  seventy-five,  shall  be  and  continue  the 
“  law  of  this  state,  subject  to  such  alterations  and  pro- 
“  visions  as  the  legislature  of  this  state  shall  from  time 
“  to  time  make  concerning  the  same.” 

And  this  convention  doth  further  ordain,  “  that  the 
“  resolves  or  resolutions  of  the  congresses  of  Nexv-Tork , 
“  and  of  the  convention  of  the  state  of  Nexv-Tork ,  now 
“  in  force,  and  not  repugnant  to  the  government  esta- 
u  Wished  by  this  constitution,  shall  be  considered  as  ma- 
“  king  part  of  the  laws  of  this  state  ;  subject,  neverthe- 
“  less,  to  such  alterations  and  provisions  as  the  legisla- 
“  ture  of  this  state  may  from  time  to  time  make  concern- 
“  ing  the  same.”f 

In  the  body  of  this  section,  are  these  exceptions,  viz. 
u  that  all  such  parts  of  the  said  common  law,  and  all 

*  Co-wp.  204.  f  Latv-s  of  Nene-York,  p.  15.  s.  35. 


88 


“  such  of  the  said  statutes  and  acts  aforesaid,  or  parts 
“  thereof,  as  may  be  construed  to  maintain  or  establish 
“  any  particular  denomination  of  Christians,  or  their 
“  ministers,  or  concern  the  allegiance  heretofore  yielded 
“  to,  and  the  supremacy,  sovereignty,  government  or 
“  prerogatives,  claimed  or  exercised  by  the  king  of  Great 
u  Britain ,  and  his  predecessors,  over  the  colony  of  New- 
“  York  and  its  inhabitants,  or  are  repugnant  to  this 
“  constitution,  be,  and  they  are  hereby  abrogated  and 
“  rejected.” 

The  only  cases,  then,  in  which  the  common  law  shall 
not  prevail  are  here  defined  ;  but  from  these  very  excep¬ 
tions  it  results  that  all  the  principles  of  the  common  law 
which  are  beneficial  to  the  public,  are  in  full  force.  And 
which  of  them  can  be  more  so  than  those  which  go  to 
preserve  the  community  from  such  combinations  as 
would,  if  permitted,  lay  the  community  at  the  mercy 
of  the  conspirators,  by  enhancing  the  price  at  their  will 
of  the  necessary  articles  of  life. 

This  conspiracy,  unnaturally  to  force  the  price  of  la¬ 
bour  beyond  its  natural  measure,  is  as  dangerous  as  any 
kind  of  monopoly,  and  if  it  be  tolerated,  as  well  may 
regrating,  forestalling,  and  every  other  pernicious  com¬ 
bination. 

Suppose  all  the  bakers  in  New-York  were  to  refuse  to 
bake  till  they  received  an  exorbitant  remuneration.  Sup¬ 
pose  the  butchers  should  enter  into  a  similar  combina¬ 
tion,  and  if  there  be  impunity  for  these,  why  shall  not 
all  other  artisans  do  likewise  ?  What  will  become  of 
the  poor,  whose  case  the  counsel  takes  so  feelingly  to 
heart  ?  The  rich  will,  by  their  money,  find  supplies  ; 
but  what  vv ill  be  the  sufferings  of  the  poor  classes  ? 


89 


Suppose  that  some  rich  speculators,  acting  upon  simi- 
lar  principles,  should,  in  a  cold  winter,  combine  to  pur¬ 
chase  up  all  the  wood,  and  refuse  to  sell  it  but  at  an  ex- 
travagant  advance,  should  we  have  no  law  to  protect  the 
poor  against  such  oppression  ?  And  would  it  be  argued, 
that  without  an  express  statute  the  law  could  furnish  no 
remedy.  As  such  acts  would  be  against  the  public  good, 
and  immoral  in  a  high  degree,  they  would  therefore 
fall  under  the  animadversions  of  the  general  law  ;  and  as 
offences  against  the  whole  community,  be  subject  to  pub¬ 
lic  prosecution. 

There  are  duties  which  every  man  owes  to  the  socie¬ 
ty  of  which  he  enjoys  the  benefits  and  protection,  which 
never  can  be  detailed,  but  must  be  regulated  by  acknow¬ 
ledged  principles  of  judicature.  A  baker,  therefore,  who 
lives  by  the  supply  of  the  public,  shall  not  abuse  that 
public  by  a  sudden  interested  and  malicious  withholding 
of  his  ordinary  supplies  ;  but  though  it  were  otherwise, 
and  that  every  individual  was  permitted,  as  far  as  in  him 
lay,  to  distress  his  fellow-citizens,  yet  if  he  combines  with 
others  to  do  so,  he  is  guilty  of  a  distinct  and  well  defi¬ 
ned  offence,  that  of  an  unlawful  conspiracy,  for  which 
he  is  indictable  and  punishable. 

We  are  as  far  as  the  defendants’  counsel  from  saying 
that  when  any  man  finds  his  trade  unprofitable,  or  prefers 
an  ther  occupation,  or  another  course  of  life,  he  is  not 
master  of  his  own  will ;  nor  that  he  would  in  such  case 
be  indictable. 

Mr.  McNally*  imputes  great  part  of  the  distresses  of 
the  poor  in  Ireland  to  such  combinations,  which  shows, 
that  they  who  would  prevent  them,  are  more  the  friends 
than  the  oppressors  of  the  poor. 

*  JiPNaJhfs  JiKt.  title  Combination,  p.  3.83. 

M 


90 


In  Jacob's  Law  Dictionary ,*  the  same  doctrines  as 
we  contend  for  are  laid  down  in  an  elementary  manner  as 
settled  law  ;  and  it  is  there  said  that  the  statute  2  and 
3  Edxv.  VI.  c.  15.  which  is  made  against  such  combina¬ 
tions  is  still  in  force,  but  is  seldom  resorted  to  in  this 
case  ;  the  proceedings  being  usually  by  indictment  for 
conspiracy. 

In  the  Crown  Circuit  Companion ,f  there  is  a  prece¬ 
dent  of  an  indictment  for  a  conspiracy  to  raise  wages. 
It  is  at  common  law,  and  in  page  280.  there  is  a  note 
subjoined,  which  says,  that  an  indictment  may  be  drawn 
from  that  form  on  the  statute,  by  pursuing  the  words  of 
it  and  concluding  contrary  to  the  form  of  the  statute 
in  this  case  made  and  provided  ;  which  shows  the  of¬ 
fence  to  be  indictable  either  on  the  statute  or  at  common 
law. 

The  authority  of  Hawkins\  goes  further,  and  says, 
that  though  these  acts  be  offences  against  the  statutes,  yet 
the  form  of  the  indictment  must  be  at  common  law. 

So  in  The  King  v.  Harris ,§  it  was  held  that  the  de¬ 
fendant  was  punishable  by  a  common  law  indictment  for 
the  breach  of  orders  made  by  the  king  and  council  ; 
those  orders  being  pursuant  to  an  act  of  parliament. 

In  The  King\.  Waddington the  charge  was  engross¬ 
ing  and  forestalling  hops.  There  were  several  statutes 
referred  to  on  the  subject  of  engrossing,  all  of  which 
were  then  repealed  ;  and  it  was  held  that  the  repeal  of 
those  statutes  only  left  the  offence  as  it  was  at  common 

*  Word  Conspiracy.  t  Dog'.  C.  C.  p.  279. 

i  JIutvIc.  C.  b.  2.  c.  25.  s.  116.  p.  71.  §  4  JJurnf.  &  East,  p.  202. 

ff  1  Host's  Rep.  p.  147. 


91 


law,  and  that  upon  general  principles  of  immorality  and 
public  detriment,  it  was  an  indictable  offence. 

Blackstone ,*  treating  of  offences  against  public  trade, 
says,  that  buying  up  large  quantities  of  corn  or  other 
dead  victuals,  with  intent  to  sell  them  again,  must  of 
course  be  injurious  to  the  public,  by  putting  it  in  the  power 
of  one  or  tAvo  rich  men  to  raise  the  price  of  provisions  at 
their  own  discretion.  And  so  the  total  engrossing  of  any 
commodity  with  intent  to  sell  it  at  an  unreasonable  price, 
is  an  offence  indictable  and  finable  at  the  common  law,  and 
the  general  penalty  for  the  three  offences  of  engrossing, 
regrating,  and  forestalling,  (the  statutes  respecting  them 
being  all  repealed  by  12  Geo.  III.  c.  71.)  is,  as  in  other 
minute  misdemeanors,  fine  and  imprisonment  at  the  dis¬ 
cretion  of  the  court.  Now,  as  there  is  no  difference  in 
the  principle,  whether  it  be  to  raise  the  price  of  provi¬ 
sions  or  of  other  necessary  articles  by  undue  means,  it 
is  in  vain  to  argue  that  they  are  not  equally  punishable, 
at  the  common  law. 

The  crime  of  which  the  defendants  stand  indicted,  is 
well  defined  by  Christian  in  his  notes  to  the  Commentaries , 
where  he  says,  “  Conspiracy  is  a  confederacy  to  injure  an 
“  individual,  or  to  do  acts  which  are  unlawful  or  preju- 
“  dicial  to  the  community.”! 

The  case  of  the  Cock  Lane  Ghost, \  shows  this  still 
stronger.  For  there  the  conspiracy  was  to  injure  an¬ 
other  by  a  mere  phantom,  which  could  have  no  reality. 

The  case  of  The  King  v.  Kimberly  and  Many  North, § 
shows  further,  that  conspiracy  itself  is  an  offence,  though 
no  other  act  be  done  but  that  of  conspiring  merely. 

Mr.  Riker  then  cited  a  number  of  precedents  to  the 
various  points  of  his  argument,  which  will  be  found  in 

*  4  lit  Com  158,  159-  f  4  III.  Com.  136.  Christian's  note  4. 

t  LI.  Lep.  348.  §  1  Lev.  62. 


92 


the  argument  of  Emmet ,  who  took  similar  ground. 
In  the  case  of  The  King  v.  Eccles ,  reported  in  a  note 
bv  the  compiler  of  the  Crown  Circuit  Assistant ,*  there 
was  an  indictment  for  conspiracy  by  indirect  means ,  to 
impoverish  one  H.  Booth ,  and  to  deprive  him  of  the  exer¬ 
cise  of  his  trade  as  a  taylor.  It  was  moved  in  arrest  of 
judgment  that  the  charge  was  tco  general ,  because  it  did 
not  specify  any  particular  act,  nor  state  by  what  means 
the  conspiracy  was  effected  :  but  the  court  held  that  it 
is  not  necessary  to  set  out  the  means ;  the  means  of  the 
conspiracy  are  evidence;  conspiracy  is  the  gist  of  the 
charge  ;  and  even  to  do  a  thing  which  is  lawful  in  it¬ 
self,  by  conspiracy  is  unlawful.  The  means  are  imma¬ 
terial,  if  there  was  an  illegal  combination. 

Mr.  Colden  has  not,  in  stating  the  various  counts  in  the 
indictment,  given  them  their  full  effect.  One  of  them, 
for  instance,  states,  that  the  defendants  compelled  Cor¬ 
win  to  discharge  Whitess  until  he  should  have  paid  a 
fine  imposed  upon  him.  The  counsel  have  given  no  rea¬ 
son  why,  if  there  be  even  one  count  good,  the  whole  in¬ 
dictment  should  be  quashed. 

Macklin’s  casef  was  an  indictment  for  conspiring  to 
ruin  the  prosecutor  in  his  profession  as  an  actor. 

In  the  same  book:):  is  a  precedent  against  serge  wea¬ 
vers,  for  refusing  to  work  for  a  master  who  had  employ¬ 
ed  a  man  contrary  to  certain  rules  entered  into  by  con¬ 
spiracy. 

In  the  precedent  given  by  Wentworth ,§  no  other  overt 
act  is  laid  of  any  of  the  imputed  charges  than  the  mere 
act  of  conspiracy  itself.  The  facts  stated,  and  which 
will  be  proved  in  this  case,  are  of  a  nature  more  hurtful 
to  trade  and  to  the  public,  than  anv  set  forth  in  the  print¬ 
ed  cases  or  precedents.  Such  for  instance  is  that  of 

*  C.  C.  -2ss.  p.  123.  t  C.  C.  159,  160.  $  lb.  p.  133.  §  4  Went.  100 


93 


binding  themselves  not  to  work  for  employers  who  should 
have  more  than  two  apprentices ;  and  regulati"g  the 
work  and  wages  of  shoemakers  and  others,  and  impo¬ 
sing  restraints  and  regulations  too  violent  to  he  endured. 

In  this  precedent,  the  fourth  count  is  the  same  as  the 
last  in  the  present,  and  concludes  “  to  the  prejudice  of 
“  divers  masters,”*  &c. 

Another  indictment  against  curriers, f  contains  counts 
exactly  similar  to  those  which  the  counsel  here  would 
have  quashed  for  insufficiency. 

Why  then  arraign  the  common  law  with  so  much  in¬ 
vective,  or  why  dispute  its  principles  when  they  are  so 
beneficial  and  protecting  ?  Why  not  give  them  efficacy 
in  this  country,  when  their  tendency  is  to  the  public 
good  ?  We  have  hitherto  been  happy  and  safe  under  the 
administration  of  the  common  law.  And  those  who  fra¬ 
med  our  constitution  upon  the  downfal  of  British  su¬ 
periority  and  empire,  still  found  nothing  more  advanta¬ 
geous  to  establish  as  a  code  than  the  ancient  common  law. 
Guarded  with  the  exceptions  of  what  alone  was  excep¬ 
tionable,  the  doctrines  of  supremacy  and  prerogative,  and 
any  other  principles,  if  such  it  contained,  repugnant  to 
our  constitution,  certainly,  the  restriction  of  illegal 
combinations  to  raise  the  price  of  articles  of  necessity, 
is  as  congenial  to  our  constitution  as  any  other  parts  of 
the  common  law. 

Let  not  Sampson  then  apply  his  force,  blindly  to  pull 
down  a  temple  which  it  has  required  so  many  ages  to  build 
up.  Let  it  stand  and  flourish  until  its  rights  become 
obnoxious  or  pernicious  ;  until  something  more  venera¬ 
ble  or  more  sacred  can  be  subscituted  in  its  stead.  Our 
constitution  has  established  it  subject  to  such  alterations 

*  Went.  112.  |  lb.  120. 

5 


94 


as  it  shall  be  found  to  require.  If  alterations  become 
necessary,  let  them  be  duly  considered  and  adopted, 
but  let  not  the  whole  fabric  be  shaken  or  destroyed. 

Mr.  Emmet.  I  shall  briefly  dismiss  a  considerable 
part  of  the  argument  offered  on  the  other  side  ;  not  for 
any  deficiency  of  respect  to  the  counsel  from  whom  it 
has  proceeded,  or  to  the  learning  and  research  which  he 
has  displayed  ;  but  because  I  do  not  consider  it  entirely 
relevant  to  this  cause,  nor  properly  addressed  to  this 
court.  To  the  legislature,  or  a  convention,  the  observa¬ 
tions  we  have  heard  upon  the  absurdities  of  the  common 
law,  and  the  impropriety  of  its  being  received  as  a  part 
of  our  legal  code,  might  be  correctly  made  if  they  were 
in  truth  well  founded  ;  but  they  appear  to  me  extremely 
misplaced  when  offered  to  a  court,  the  judges  of  which  are 
bound  and  sworn  to  administer  justice  according  to  that 
common  law,  and  who  certainly  have  no  authority  to 
shake  the  foundations  of  the  system  under  which  they 
themselves  are  constituted.  Lest,  however,  I  should  be 
thought  by  my  silence  to  acquiesce  in  the  justice  of  these 
observations,  let  me  ask  the  learned  counsel  how  he 
proposes  to  fill  the  void  which  would  be  created  in  our 
jurisprudence  by  the  entire  and  indiscriminate  abrogation 
of  the  common  law  ?  Has  he  digested  a  better  code,  and 
is  he  prepared  to  submit  it  to  the  world  ?  If  he  has,  I 
shall  for  one  willingly  take  it  into  consideration  ;  but 
most  assuredly  I  shall  not,  without  the  most  obvious  and 
certain  benefits,  be  induced  to  part  with  that  to  which 
our  habits  of  thinking,  reasoning,  and  acting  are  peculiar¬ 
ly  formed,  to  which  our  institutions  are  all  adapted,  and 
upon  the  improvement  of  which  and  the  application  and 
the  fitting  of  it  to  the  constitution  and  wants  of  socie¬ 
ty,  the  wisdom,  industry  and  talents  of  the  ablest,  most 


95 


judicious  and  upright  men  have  been  laboriously,  uncea¬ 
singly  and  immemorially  employed.  If  there  be  in  any 
other  state  or  country  a  disposition  to  abandon  the  com¬ 
mon  law,  and  try  the  experiment  of  creating  a  new  code 
of  civil  conduct  ;  let  them  take  the  lead  ;  I  will  not 
rashly  follow.  If,  indeed  the  experiment  should  suc¬ 
ceed,  and  a  greater  portion  of  justice  and  social  happi¬ 
ness  be  the  result,  this  state,  I  hope,  will  be  ready  to 
adopt  it  ;  but  until  then  we  shall  best  consult  our  inte¬ 
rests  if  we  adhere  to  what  we  know  and  to  what  has  been 
perfected  by  successive  adjudications,  filtered  through 
successive  generations,  and  purified  from  its  original  in¬ 
congruities  ;  which,  however,  have  been  erroneously 
brought  forward  and  exposed  in  this  discussion  as  if  they 
had  actual  existence  and  effect.  Indeed,  the  learned 
counsel  has  done  more  ;  he  has  raked  through  the  statute 
books  for  every  extravagant  absurdity  or  folly  that  the 
ignorance  or  weakness  of  our  forefathers  may  have  pla¬ 
ced  there  ;  and  he  has  endeavoured  to  fix  them  as  a  stig¬ 
ma  on  the  common  law ;  with  what  propriety  I  shall  not 
stop  to  inquire,  but  shall  take  the  liberty  of  observing  that 
no  advantage  can  accrue  to  the  community,  from  gene¬ 
ral  satires  on  the  law  of  the  land,  delivered  in  a  court  of 
justice. 

It  is  also  insisted  upon,  that  many  parts  of  the  com¬ 
mon  law  of  England  were  never  adopted  here  ;  and 
from  the  supposed  uncertainty  of  what  may  not  have 
been  adopted,  it  is  endeavoured  to  deduce  an  argument 
that  so  much  relates  to  conspiracies  of  this  description. 
The  weakness  of  this  reasoning  is  obvious  ;  but  in  truth 
there  is  no  uncertainty  as  to  what  parts  of  the  common 
law  have  been  adopted,  and  what  rejected.  The  consti¬ 
tution  has  spoken  on  this  subject.  In  the  35th  article  it 


96 


is  “  ordained,  determined  and  declared,  that  all  such  parts 
u  of  the  commorrtaw  as  may  be  construed  to  establish  or 
“  maintain  any  particular  denomination  of  Christians  or 
“  their  ministers,  or  concern  the  allegiance  heretofore 
“  yielded  to,  and  the  supremacy, sovereignty,  government, 
“  or  prerogatives  claimed  or  exercised  by  the  king  of  Great 
“  Britain  and  his  predecessors  over  the  colony  of  Ncw- 
u  York  and  its  inliabitants,  or  are  repugnant  to  that  consti- 
“  tution,  be,  arid  they  are  hereby  abrogated  and  rejected.” 
Th  ese  are  the  only  exceptions.  In  every  other  respect, 
the  common  law  which  could  have  been  applied  on  the 
19th  of  April,  1  775,  to  any  transaction  within  this  colo¬ 
ny,  if  the  case  calling  for  its  application  had  then  occur¬ 
red,  is  now  in  force.  No  matter  whether  any  such  case 
had  actually  presented  itself,  or  whether  such  application 
of  the  law  had  then  been  made  ;  the  only  point  to  be  consi¬ 
dered  is,  whether,  if  it  had  occurred,  there  was  any  thing 
arising  out  of  the  colonial  situation  of  this  country  which 
would  have  rendered  the  common  law  of  England  inap¬ 
plicable  to  such  a  case.  In  illustration  of  this  I  may  be 
permitted  to  state  what  I  have  been  informed  of  on 
very  respectable  authority.  It  is  to  be  observed  that  by 
the  same  article  of  the  constitution,  such  parts  of  the  En¬ 
glish  statute  law  as  formed  part  of  the  law  of  the  colo¬ 
ny  on  that  day,  are  continued  as  the  law  of  this  state. 
Under  that  provision  Mr.  Jones ,  since  the  Revolution, 
took,  for  the  first  time,  the  defence  of  twenty  years  ad¬ 
verse  possession  in  an  ejectment,  although  it  had  never 
been  done  or  thought  of  while  this  country  was  a  colonv. 
But,  nevertheless,  the  defence,  when  urged,  was  admit¬ 
ted,  because  it  might  have  been  applied  and  used  before 
the  19th  of  April ,  1775.  Although  at  the  first  settling 
of  the  colony,  or  in  its  infant  state,  the  common  law 


97 


may  have  found  no  subject  upon  which  particular  parts 
of  it  could  operate,  yet  it  was  the  birthright  of  the 
colonists  as  a  permanent  rule  of  justice,  which,  at  every 
new  period  of  advancement  and  progress,  would  adapt 
itself  to  the  rising  exigency.  If  no  precedent  could  be 
produced  of  such  an  indictment  as  this  antecedent  to  the 
revolution,  (which  however,  the  counsel  on  the  other  side 
have  themselves  disproved  by  the  production  of  an  ori¬ 
ginal  record,)  that  might  be  attributed  to  the  paucity  of 
manufactures  and  manufacturers,  which  rendered  such  a 
combination  almost  impossible  and  unknown  ;  as  in  truth 
it  was  in  England  for  centuries.  But  the  opposite  coun¬ 
sel  must  go  further,  and  show  that  if  it  had  occurred, 
there  was  something  arising  out  of  the  colonial  situation 
of  the  province,  to  render  the  common  law  inapplicable 
to  the  punishment  of  such  an  offence.  This  has  not  been 
attempted. 

It  is,  however,  contended,  (and  this  is  the  last  in- 
trenchment  of  my  adversaries  on  their  grounds  of  ob¬ 
jections,)  that  even  in  England  this  is  not  an  offence  at 
common  law,  but  only  growing  out  of  particular  statutes. 
It,  therefore,  becomes  my  business  to  show  that  this  po¬ 
sition  is  unfounded.  The  learned  counsel,  in  support  of 
it,  seem  sometimes  to  contend,  that  there  is  no  case  of 
conspiracy  at  common  law,  but  where  it  is  accompanied 
with  the  crimen  falsi ;  as  falsely  prosecuting  in  a  court  of 
justice,  or  falsely  imputing  to  a  third  person  something 
infamous  or  injurious  to  him.  That  there  are  conspira¬ 
cies  of  this  kind  is  certain,  and  the  appropriate  punish¬ 
ment  affixed  to  them  shows  that  they  are  of  a  very  ag¬ 
gravated  nature.  They  induce  an  infamous  punishment, 

by  which  the  convicted  person  becomes  disqualified  from 

ft 


93 


giving  evidence  in  a  court  of  justice.  There  are,  however, 
also  conspiracies  not  infamous,  in  which  the  object  to  be 
accomplished  is  only  the  wrongful  injury  of  a  third  person. 
An  instance  of  this  occurs,  very  apposite,  though  appa- 
rentlv  somewhat  trivial  it  is  to  be  feared,  in  the  case  of  The 
King  v.  Cope ,  where  several  were  indicted  for  a  conspiracy 
to  ruin  a  card  maker ,  by  causing  grease  to  be  put  into 
the  paste,  which  had  spoiled  the  cards.  But  to  advert  to  a 
more  important  and  atrocious  case — that  of  The  King  v. 
j Delaval  et  a/,  depends  on  the  same  principles  of  private 
injury  and  public  police  and  morality.  There  an  infor¬ 
mation  was  granted  against  Sir  Francis  Blake  Delaval 
and  others ,  for  a  confederacy  to  assign  over  Miss  Cately , 
then  an  apprentice  to  a  musician.,  by  her  own  consent,  for 
the  purpose  of  prostitution.  The  case  before  the  court 
is  also  very  intimately  connected  with  public  police  and 
prosperity  ;  and  surely  the  argument  cannot  be  favour¬ 
ably  received,  which,  if  pushed  to  its  full  extent,  would 
prove  that  a  crime  so  enormous  and  profligate  as  that 
of  Sir  Francis  Delaval  and  his  associates,  is  unpunish¬ 
able  by  our  law.  Many  other  cases  might  be  quoted, 
which,  with  those  I  have  already  mentioned,  and  those 
I  shall  of  necessity  cite  in  the  course  of  my  observations, 
clearly  establish  that  the  crimen  falsi  need  not  enter  into 
conspiracy,  as  a  common  law  offence.  There  is  another 
and  much  more  comprehensive  description  of  what  con¬ 
stitutes  that  offence,  which  we,  on  behalf  of  the  prose¬ 
cution,  derive  from  Hawkins's  Pleas  of  the  Crown,* 
where  that  learned  author  lays  it  down  that  w  there 
“  can  be  no  doubt  but  that  all  confederacies  whatever, 
“  wrongfully  to  prejudice  a  third  person,  are  highly  crimi- 
nal  at  common  law  ;  as  where  divers  persons  confederate 


Vo).  3.  b.  1.  c.  73.  p.  131. 


99 


together  by  indirect  means  to  impoverish  a  third  per- 
“  son,”  &c.  To  this  I  add  a  fortiori ,  and  what  follows 
from  all  the  cases,  that  a  donspiracy  wrongfully  to  preju¬ 
dice  the  public,  is  also  highly  criminal.  In  the  editor’s 
note  on  this  passage  of  Hawkins ,  it  is  stated  as  flowing 
from  the  principle  laid  down  in  the  text,  that  journeymen 
confederating  and  refusing  to  work  unless  for  certain 
"wages,  may  be  indicted  for  a  conspiracy,  notwithstanding 
the  statutes  which  regulate  their  work  and  wages  do  not 
direct  this  mode  of  prosecution,  for  the  offence  consists 
in  the  conspiring,  and  not  in  the  refusal ;  and  all  conspi¬ 
racies  are  illegal  although  the  subject  matter  of  them  may 
be  lawful.  For  this  is  cited  8  Mod.  11.  and  320.  and  the 
opposite  counsel  triumphantly  remark  that  the  note  is  Mr. 
Leach's  production,  and  8  Mod.  most  despicable  authority. 
The  true  consideration,  however,  is,  whether  the  inference 
in  the  note  is  fairly  deduced  from  the  principle  in  the 
text,  and  whether  that  principle  be  in  itself  correct.  As 
to  the  principle,  it  seems  to  me  indisputable.  Even  if  it 
rested  only  upon  the  authority  of  Hawkins ,  it  would 
rest  upon  the  first  authority  in  the  Crown  Laxv ,  and  one 
which  will  not  mislead  any  judge  who  adopts  it.  But 
he  also  cites  different  authorities  which  support  his  po¬ 
sition,  and  strongly  bear  upon  this  case.  The  most 
important  is  that  of  Rex  v>  Sterling  and  seventeen 
others.*  That  was  an  information  against  them,  that 
they,  with  divers  other  brewers ,  &c.  did  factiously  and 
unlawfully  assemble  themselves  and  conspire  to  impove¬ 
rish  the  excisemen,  and  gave  orders  that  no  small  beer, 
called  gallon  beer,  should  be  made,  &c.  This  conviction 
was  supported,  inasmuch  as  the  conspiracy  tends  to  the 
public ,  because  it  concerns  the  king’s  revenue  ;  and  also, 

*  1  Lev.  125.  1  Sid-  174.  1  Keb.  6>0. 


100 


inasmuch  as  it  being  averred  and  found  to  be  factiously 
and  unlawfully  done,  that  well  enough  explains  what 
kind  of  impoverishment  is  intended.  To  this  case  it  is 
objected,  that  it  was  decided  for  the  prosecution,  on 
account  of  the  king’s  revenue,  and  that  it  is  founded  on 
a  Star  Chamber  decision,  which  in  itself  pollutes  the 
authority.  As  to  the  first  objection,  the  king’s  revenue  is 
only  mentioned  as  indicating  the  manner  in  which  this 
conspiracy  tended  to  the  public ,  which  was  one  of  the 
principles  adopted ;  the  other  was,  that  a  conspiracy  un¬ 
lawfully  to  impoverish  the  excisemen,  is  also  criminal. 
Thi  s  case,  therefore,  shows,  that  either  a  conspiracy  un¬ 
lawfully  to  prejudice  ether  individuals,  or  the  public  at 
large,  is  an  offence.  As  to  the  Star  Chamber  decision, 
that  only  went  to  one  point  hereafter  to  be  considered, 
that  an  overt  act  need  not  be  done  to  complete  the  offence, 
which  is  likewise  supported  by  the  authority  of  9  Co. 
the  Poulterers’  case  and  many  other  decisions  ;  but  I  must 
also  observe  that  although  the  summary  and  arbitrary 
mode  of  proceeding  in  that  court  has  rendered  it  justly- 
odious,  yet  some  of  the  best  authorities  we  have  in  our 
reports,  particularly  in  Coke's  Reports ,  are  Star  Chamber 
cases. 

The  principle,  then,  which  Hawkins  lays  down,  and 
for  which  we  contend,  is  fully  supported  by  authority, 
and  indeed  has  never  till  now  been  called  in  question. 
I  shall,  however,  beg  to  refer  those  who  wish  to  draw  a 
line  of  distinction  between  English  and  American  law  on 
this  subject,  to  3  Wilsons  Lectures ,  118.  where,  treat¬ 
ing  of  the  law  as  it  is  in  this  country,  he  says,  by 
that  law  (the  common  law)  “  all  confederacies  what- 
“  ever,  wrongfully  to  prejudice  a  third  person,  are  high- 
“  ly  criminal.”  The  principle  then  being  settled,  let  us 


101 


examine  whether  Mr.  Leach's  inference  from  it  in  his 
note  be  just.  He  cites  8  Mod.  against  which  an  outcry 
is  raised  on  the  authority  of  Burrow.  That  there 
are  many  cases  defectively  reported  in  that  book  is  cer¬ 
tain  :  but  there  are  also  many  others  the  correctness  of 
which  has  never  been  doubted.  It  is  relied  upon  by  the 
very  latest  writer  on  Crown  Law,  and  that  where  he  lays 
down  the  nature  of  conspiracy  in  a  manner  very  applica¬ 
ble  to  our  case.  1  East's  Crown  Law ,  462.  “  An  indict- 
“  ment  lies  wherever  either  the  conspiracy  is  entered  in- 
“  to  for  a  corrupt  and  illegal  purpose,  or  for  the  use  of 
“  unlawful  means  to  effect  a  legal  purpose,  although  such 
“  purpose  be  not  effected.”  In  the  case  of  The  King  v. 
The  y ourneymen  Taylors  of  Cambridge  f  the  doctrine  is 
broadly  laid  down ;  and  in  support  of  it  is  vouched  the 
case  of  The  Tub  women  v.  The  Brewers  of  London , 
which  has  puzzled  not  only  the  opposite  counsel,  but 
those  who  in  a  neighbouring  state  have  examined  this 
question,  to  know  where  that  case  is  to  be  found,  or 
what  it  means.  My  learned  friend,  however,  has  set¬ 
tled  into  the  belief  that  it  means  the  case  of  The  King  v. 
Alderman  Sterling  and  others ,  already  commented  upon. 
In  this  I  concur,  though  not  for  the  reasons  he  assigns. 
For  it  having  been  tried  and  decided  in  the  King's  Bench , 
the  Tubman  of  the  Court  of  Exchequer  could  have  no¬ 
thing  to  say  to  it  ;  and  even  if  he  had,  I  do  not  see  why  its 
being  conducted  by  an  officer  called  the  Tubman  of  that 
court  should  entitle  it  to  be  called  the  Tub  women's  case. 
The  truth,  I  presume,  is,  that  the  small  beer  called  gal¬ 
lon  beer,  mentioned  in  the  report  as  being  sold  to  the 
poor,  was  hawked  about  as  similar  beverages  are  in 
many  countries,  and  sold  in  the  streets  by  women,  who, 
from  their  occupation  and  the  vessel  in  which  was  con- 


*  9  Mod.  n. 


102 


tnined  the  article  they  sold,  were  called  Tub  xvomen . 
And  when  the  brexuers  of  London  combined  not  to  make 
or  permit  any  more  such  beer  to  be  made,  by  which  the 
occupation  of  these  women  was  ruined,  it  is  very  pro¬ 
bable  that  their  interest  and  activity  against  the  brexuers 
made  them  conspicuous  personages  in  the  cause,  and 
procured  that  name  to  the  case.  Be  that,  however,  as  it 
may,  the  case  of  The  King  v.  Sterling  undoubtedly 
contains  the  principle  that  supports  the  case  in  8  Mode>  n, 
that  anv  conspiracy  to  do  a  wrongful  act,  tending  to  pub¬ 
lic  injury,  or  the  impoverishment  of  third  persons,  is 
indictable.  But  it  is  not  on  the  authority  of  8  Modern 
or  the  Tub  women's  case  alone  that  the  particular  appli¬ 
cation  of  that  principle  is  founded.  In  Hawk.  b.  2.  c. 
26.  (vol.  4.  p.  85.)  the  author,  speaking  of  informations, 
and  when  they  may  be  granted,  recites,  among  other  of¬ 
fences,  “  conspiracies  to  impoverish  a  certain  set  of  law- 
“  ful  traders  and  if  an  information  lies,  inevitably  an 
indictment  will.  In  12  Mod.  248.  (case  427.)  Anonymous , 
leave  was  given  to  file  an  information  against  several 
plate  button  makers  for  combining  by  covenants,  not  to 
sell  under  a  set  rate.  Per  Holt ,  C.  J.  “  It  is  fit  that  all 
“  confederacies  by  those  of  a  trade  to  raise  their  rates, 
“  should  be  suppressed.”  In  Bolton's  Justice,  (which 
the  learned  counsel  has  cited,  and  the  authority  and  ac¬ 
curacy  of  which  I  willingly  admit,)  vol.  2.  p.  16.  it  is 
laid  down  that  any  such  conspiracy  is  an  offence  at 
common  law,  notwithstanding  there  are  statutes  to  ena¬ 
ble  justice  to  fix  those  rates,  and  punish  any  one  exact¬ 
ing  more.  In  1  Keb.  650.  (the  report  of  Rex  v.  Ster¬ 
ling u)  it  is  laid  down  by  Hyde ,  C.  J.  that  the  very  con¬ 
spiracy,  without  an  overt  act,  to  raise  the  price  of  pep¬ 
per,  is  punishable,  or  of  any  other  merchandise.  In 

9 


103 


the  Liber  Assisarum ,  27  Edw.  III.  p.  138,  139.  there 
is  set  down  a  list  of  the  matters  to  be  inquired  of  by  the 
inquests  of  office  in  the  King’s  Bench ,  and  among  others, 
different  conspiracies.  The  19th  article  runs  thus: 
“  Also  of  merchants,  who  by  covin  and  alliance  among 
“  themselves,  in  any  year  put  a  certain  price  on  wools , 
“  which  are  to  be  sold  in  the  country,  so  that  none  of 
<L  them  will  buy,  or  otherwise  pass  in  the  purchase  of 
t£  wools  beyond  the  certain  price  which  they  themselves 
“  have  ordained,  to  the  great  impoverishment  of  the  peo- 
“  plef  &c.  Here  is  an  authority  pretty  nearly  as  an¬ 
cient  as  any  that  the  most  profound  researches  of  the 
learned  counsel  have  discovered,  which  does  not  depend 
on  either  the  plague  or  the  statutes  of  labourers,  which 
marks  a  conspiracy  to  raise  the  price  of  an  article  of  mer¬ 
chandise  as  an  indictable  crime,  independent  of  any  sta¬ 
tute  ;  for  I  challenge  both  my  learned  adversaries,  to 
find  any  statute  or  ordinance  bearing  upon  this  offence. 
This  authority  is  dependent  in  all  its  parts  on  the  com¬ 
mon  law,  and  puts  the  gravamen  on  its  true  footing, 
“  the  great  impoverishment  of  the  people.”  Wool  is 
mentioned  only  because  it  was  one  of  the  most  import¬ 
ant  articles  of  merchandise  in  those  days,  and  for  a 
particular  illustration,  in  the  same  way  as  pepper  is  spe¬ 
cified  in  Keble ;  but  the  principle  is  of  universal  ap¬ 
plicability.  This  authority  is,  I  think,  perfectly  conclu¬ 
sive  ;  but  I  must,  before  I  dismiss  this  point,  allude  to 
the  record  brought  into  court  by  one  of  the  opposite 
counsel.  It  is  an  information  against  journeymen  ba¬ 
kers  for  a  conspiracy  not  to  bake  till  their  wages  were 
raised.  On  this  they  were  tried  and  convicted  before 
the  revolution ;  but,  as  the  counsel  says,  it  does  not  ap¬ 
pear  that  any  sentence  was  ever  passed,  from  which  he 


104 


( 


concludes  that  judgment  was  arrested.  This  undoubt¬ 
edly  is  a  non  sequitur.  The  criminal  may  have  become 
penitent,  and  the  object  of  the  prosecution  having  been 
obtained,  judgment  may  never  have  been  moved  for; 
besides,  it  is  well  known  that  those  records  have  been  in 
such  confusion  that  no  one  can  tell  what  has  happened 
in  almost  any  cause.  But  if  judgment  was  arrested,  let 
me  point  out  the  fault  in  the  information  on  which  it 
may  have  happened.  It  concludes  against  the  form  of 
the  statute,  whereas  it  should  have  concluded  at  com¬ 
mon  law,  even  if  there  had  been  a  colonial  statute  regu¬ 
lating  that  subject,  which  does  not  appear.  The  gentle¬ 
men  themselves  allow  and  claim  the  benefit  of  this  doc¬ 
trine  ;  and  indeed  it  is  settled  on  the  same  principle  as 
governed  the  case  of  The  King ■  v.  Smith,*  which  they 
have  cited,  that  where  powers  are  created  by  statute,  it 
is  an  offence  at  common  law  to  obstruct  the  execution  of 

them,  and  such  an  indictment  ought  not  to  conclude 
against  the  statute.  On  account  of  this  defect,  perhaps, 
judgment  was  never  had  ;  but  the  learned  counsel,  by 
relying  on  this  record,  admits  that  his  clients’  case  is  si¬ 
milar  to  that  of  the  bakers’ ,  and  contends  that  such  a 
combination  on  their  part  is  not  indictable.  Observe, 

then,  and  let  me  illustrate  the  doctrine  he  maintains. 
Suppose  the  bakers  of  this  city  were  to  combine  not  to 
bake  a  loaf  of  bread  till  some  demands,  as  to  the  assize, 
were  complied  with  ;  and  that  the  butchers  were  at  the 
same  time  to  combine  not  to  sell  a  pound  of  meat  till 
some  object  of  theirs  should  be  gained,  what  would  be 
the  consequence  ?  A  misfortune  worse  than  pestilence 
W'Quld  instantly  befal  the  city.  And  are  we  to  be  told, 
that  not  only  the  individuals  of  those  classes  of  men. 


*  Doug.  441. 


105 


to  whom,  in  the  general  distribution  of  employment, 
society  has  confided  the  care  of  providing  for  its  most 
important  wants,  may  singly  abandon  their  duty  ;  but  that 
those  classes  en  masse ,  without  any  intention  of  perma¬ 
nently  relinquishing  or  changing  their  occupations,  but 
merely  as  a  measure  of  extortion  from  the  necessities  o i 
others,  for  private  interest,  may  lawfully  conspire  together 
to  inflict  the  most  terrible  calamities  on  the  community  ; 
and  this  is  called  the  mere  exercise  of  individual  rights, 
and  the  toleration  of  it  is  considered  as  sound  political 
economy  !  But  no. — Individual  rights  are  sufficiently  se¬ 
cured  by  letting  every  man,  according  to  his  own  will, 
follow  his  own  pursuits,  while  public  welfare  forbids 
that  combinations  should  be  entered  into  for  private  be¬ 
nefit,  by  the  persons  concerned  in  any  employment  con¬ 
nected  with  the  general  welfare  ;  in  which  combinations 
they  would  make  common  cause  against  the  community 
at  large ;  and  in  which  the  individual  rights  of  those  in 
the  combining  classes,  who  may  wish  to  be  industrious, 
are  most  grievously  violated  ;  because,  if  they  were  per¬ 
mitted  to  follow  their  pursuits,  it  would  tend  to  relieve 
society  from  the  extortions  of  the  conspirators.  These 
combinations  are  an  infringement  of  that  tacit  compact 
which  all  classes  reciprocally  enter  into,  that  when  the}' 
have  partitioned  and  distributed  among  them  the  differ¬ 
ent  occupations  conducive  to  general  prosperity,  they 
will  pursue  those  occupations  so  as  to  contribute  to  the 
general  happiness  ;  and  they  are  therefore  at  war  with 
public  policy.  But  when  it  is  further  considered  that 
they  are  always  accompanied  with  compulsory  measures 
against  those  of  the  same  class  or  trade,  who  would  willing¬ 
ly  pursue  their  occupation  with  industry  and  tranquillity, 

they  are  most  tyrannical  violations  of  private  right,  and 

o 


106 


inevitably  lend  to  the  unjust  impoverishment  of  multi¬ 
tudes,  either  of  those  against  whom  the  confederacy  is 
directed,  or  of  those  who  are  forced  into  it,  or  devoted 
by  it,  for  exercising  their  own  individual  rights,  and  re¬ 
fusing  to  cooperate  with  the  unlawful  association. 

The  authorities  already  laid  before  the  court  cannot 
be  strengthened  by  additional  references.  I  shall,  how-* 
ever,  quote  one  more  author,  because  his  name  and  cha¬ 
racter  are  familiar  to  some  of  the  persons  indicted,  who 
now  hear  me,  and  may  therefore  tend  to  convince  them 
that  they  have  offended  against  the  laws  and  policy  which 
must  be  maintained  in  every  well  regulated  state.  The  au¬ 
thority  I  allude  to  is  I\P  Nailyas  Justice  of  the  Peace.'*  “At 
“  common  law ,  all  confederacies  and  combinations  wrong- 
“  fully  to  prejudice  any  person,  or  the  public,  are  offences 
“  punishable  by  indictment.  Combinations  among  masters 
“  and  workmen  of  various  descriptions,  have  been  pro- 
“  ductive  of  the  most  serious  consequences  to  the  trade 
“  and  manufactures  of  Ireland ,  have  been  recognised 
“  as  unlawful  by  the  legislature,  and  are  punishable  by 
“  several  acts  of  parliament.  It  is  a  melancholy  truth 
“  that  repeated  combinations  to  regulate  trade  and 
“  advance  wages,  have  raised  the  home  manufactures 
“  to  so  enormous  a  price,  that  most  articles,  whether 
“  for  use  or  ornament,  are  now  imported  from  En- 
“  gland  or  from  Scotland,  to  the  great  impoverishment 
“  of  this  country,  and  to  the  ruin  of  the  artificers 
“  themselves,  who,  from  necessity,  the  result  of  their 
“  own  illegal  conduct,  are  forced  to  abandon  their 
“  native  land,  the  most  productive  in  the  world,  where 
“'-they  might  have  lived  in  ease  and  plenty,  to  seek  a  pre- 
“  carious  subsistence  in  Great  Britain  or  America .”  In 


*  Vo!  1  p.  38S.  tit.  Combivati'm. 


107 


this  passage  I  freely  acknowledge  the  writer  has  not  set 
forth  what  are  the  most  important  causes  of  the  languish¬ 
ing  trade  and  manufactures  of  Ireland ;  he  dare  not  do 
it,  for  they  are  connected  with  the  jealousies  and  oppres¬ 
sions  of  its  tyrant  and  its  rival,  and  with  the  general  mis¬ 
rule  of  that  ill-fated  land.  But  what  he  has  set 
forth  is  so  far  true,  that  such  combinations  have  impe¬ 
ded  in  that,  and  must  in  every  country  impede  and  in¬ 
terfere  with  its  manufacturing  prosperity. 

Much  has  been  said  about  the  villanous  judgment 
as  if  by  this  prosecution  it  was  intended  to  revive  and 
enforce  that  horrible  punishment  ;  but  the  counsel  on 
the  other  side  well  know  that  this  is  a  groundless  in¬ 
sinuation.  The  villanous  judgment  is  now  in  every  case 
obsolete  ;  but  according  to  the  best  authorities,  it  never 
could  have  been  inflicted  on  such  an  offence  as  this,  and 
most  undoubtedly  it  never  tvas.  Hawkins*  expresses  his 
opinion  that  the  villanous  judgment  could  only  be  inflict¬ 
ed  when  a  conspiracy  was  formed  to  accuse  another  of 
some  matter  which  might  touch  his  life  ;  and  he  expressly 
says,  the  contraiw  has  never  been  decided.  Where  the  con¬ 
spiracy  is  accompanied  with  the  crimen  falsi ,  it  is  subject 
to  an  infamous  punishment,  including  pillory  ;  and  the 
person  convicted  is  disqualified  from  giving  evidence  in  a 
court  of  justice.  But  where  the  confederacy  is  unaccom¬ 
panied  with  that  crime,  and  is  only  calculated  to  prejudice 
a  third  person  or  the  public,  the  punishment  is  merely 
fine  and  imprisonment,  without  any  such  disqualification 
or  infamy.  And  permit  me  to  observe,  that  the  correct¬ 
ness  of  this  gradation  in  the  punishments,  is  calculated  to 
wipe  away  the  imputations  of  folly  and  injustice,  which 
have  been  very  improperly  cast  upon  our  common  law, 

*  P  C.  p.  2.  s.  1.  e.  72  b  9.  p.  125. 


108 


i  now  proceed  to  the  examination  of  the  more  parti¬ 
cular  and  technical  objections  to  this  indictment,  which 
I  do  under  great  disadvantage,  as  business  in  another 
court  unfortunately  detained  me  there  during  the  greater 
part  of  the  argument  of  my  learned  adversary,  who 
chiefly  occupied  this  ground,  a  circumstance  which  I 
doubly  regret  both  on  account  of  the  professional  inform¬ 
ation  I  should  have  acquired  had  I  been  present,  and 
because  it  disqualifies  me  from  meeting  his  arguments 
with  the  precision  they  doubtless  deserve  and  require. 
The  District  Attorney  has,  however,  discussed  those  ob¬ 
jections  with  so  much  force  and  learning,  that  I  shall 
feel  myself  justified  in  being  very  brief.  There  is  a 
general  remark,  which,  as  it  seems  to  me,  renders  every 
other  nearly  unnecessary  :  this  motion  cannot  suc¬ 
ceed  if  there  be  anv  one  count  good  ;  and  there  are  some 
of  the  counts  on  which  I  presume  the  court  can  entertain 
no  doubt — indeed  all  of  them  have  been  drawn  con¬ 
formably  to  the  most  approved  precedents.  The  fifth  and 
ninth  are  verbatim,  according  to  the  precedent  in  Rex 
v.  lie  tics  D  which  the  Court  of  King's  Bench  in  England 
held  good  on  motion  in  arrest  of  judgment  ;  and  the 
third  count  has  every  formal  requisite  that  was  ever 
contended  for,  and  can  only  be  questioned  on  the  gene¬ 
ral  principles,  that  have  been,  I  hope,  refuted.  Objec¬ 
tions,  however,  are  in  fact  taken  to  every  count,  and  they 
all  flow  more  or  less  directly  from  the  general  proposi¬ 
tion  with  which  that  gentleman  commenced  his  argu¬ 
ment  ;  that  every  unlawful  conspiracy_(that  is,  I  presume, 
every  indictable  conspiracy)  must  be  to  do  an  unlawful 
act,  and  the  unlawful  act  must  appear  such  on  the  face 


*  7)oc'.  C.  C.  .ins.  i>.  note 


109 


of  the  indictment.  This  proposition,  however,  is  not 
correct,  if  by  the  expression  “  to  do  an  unlawful  act”  is 
meant  to  effect  an  unlawful  purpose.  East ,  in  the  passage 
I  have  already  cited,*  says,  an  indictment  lies  wherever  ' 
either  the  conspiracy  is  entered  into  for  a  corrupt  and 
illegal  purpose,  or  from  the  use  of  unlawful  means,  to 
effect  a  legal  purpose ,  although  such  purpose  be  not  ef¬ 
fected.  But  even  this  position  does  not  appear,  accord¬ 
ing  to  some  authorities,  sufficiently  accurate  ;  for  the  very 
act  of  conspiracy  is  held  to  be  itself  unlawful,  and  the  en¬ 
tering  into  it  is  using  unlawful  means  to  effect  a  purpose, 
and  is  therefore  punishable  whether  that  purpose  be  law¬ 
ful  or  not.  This  doctrine  is  expressly  laid  down  in  the 
case  so  often  and  disrespectfully  alluded  to  by  the  op¬ 
posite  counsel,  that  of  The  King  v.  The  J ourneijmen 
Taulors  of  Cambridge .f  “  A  conspiracy  of  any  kind  is  il- 
“  legal,  although  the  matter  about  which  thev  conspired 
“  might  have  been  lawful  for  them,  or  anv  of  them  to 
a  do,  if  they  had  not  conspired  to  do  it.”  In  the  same 
book,  p.  321.  the  proposition  is  a  little  more  qualified, 
though  substantially  the  same  :  iC  a  bare  conspiracy  to  do 
“  a  lawful  act  to  an  unlawful  end,  is  a  crime,  though  no 
“  act  be  done  in  consequence  thereof.”  The  position, 
however,  in  its  fullest  extent,  is  recognised  in  the  case 
already  cited  of  Rex  v.  Eccles.f  “  Conspiracy  is  the  gist 
“  of  the  charge  ;  and  even  to  do  a  thing  which  is  laxvful 
“  in  itself,  by  conspiracy ,  is  unlawful.'  Taking  the  po¬ 
sition  of  East ,  or  either  of  those  in  8  Mod.  to  be  correct, 
the  indictment  is  free  from  the  objections  urged  against 
it  on  this  ground  ;  for  the  end  to  be  accomplished  in  the 
1st,  2d,  3d,  6th,  7th,  and  8th  counts,  unlawfully  and  un- 

*  East's  Croton  Lav,  46 C.  +  SMoJ.  Tl.  -  tio:  C  C.  .  ?  •  !»?,  ici 


110 


justly  to  extort  great  sums  of  money  bv  means  of  form¬ 
ing  and  uniting  themselves  into  an  Unlawful  combina¬ 
tion,  and  of  making  unlawful  and  arbitrary  by-laws  for 
the  government  of  themselves  and  other  workmen  in  the 
same  trade,  is  most  obviously  unlawful ;  and  the  end  to 
be  accomplished  as  stated  in  the  fourth  and  fifth  counts, 
unjustlv  and  unlawfully  to  impoverish  Edward  Whitest;, 
and  to  hinder  him  from  exercising  the  trade  of  a  cord- 
wainer ,  as  well  as  that  set  forth  in  the  ninth  count,  bv  in¬ 
direct  means  to  impoverish  the  master  shoemakers  there¬ 
in  named,  are,  as  I  think,  equally  unlawful.  Indeed  it 
appears  to  me  that  they  even  fall  within  the  rule  laid 
down  by  the  learned  counsel  himself,  and  that  a  conspi¬ 
racy  to  accomplish  any  of  those  purposes,  is  one  to  do 
an  unlawful  act,  and  that  the  unlawful  act  sufficiently  ap¬ 
pears  on  the  face  of  the  indictment. 

It  is  also  objected  to  all  the  counts  but  the  third  and 
fourth,  that  they  contain  no  overt  acts.  The  attorney  for 
lie  district  has  sufficiently  answered  this,  and  the  multi¬ 
tude  of  precedents  and  cases  he  has  produced,  must  be 
considered  as  conclusive.  But  if  it  be  true  as  laid  down 
in  27  Ass.  44.  9  Co.  56.  b.  1  Lev.  126.  1  Salk.  174. 

8  Mod.  321.  and  in  a  multitude  of  other  places,  that  bare 
conspiracy  is  punishable  without  any  thing  having  been 
put  in  use  in  consequence  of  it,  or  any  overt  act  done,  it 
surely  cannot  be  required  to  set  forth  in  the  indictment 
an  overt  act,  when  one  may  not  have  been  committed, 
and  when  its  existence  is  not  necessary  to  the  completion 
of  the  crime.  At  all  events,  as  is  laid  down  in  all  those 
places,  as  well  as  in  The  King-  v.  Eccles,  conspiracy  is 
"the  gist  of  the  crime,  the  overt  act  is  only  matter  of  evi¬ 
dence,  and  it  is  clearly  settled  in  the  case  of  The  King 


ill 


v.  Horne ,*  that  whatever  circumstances  are  necessary,  to 
constitute  the  crime  imputed,  must  be  set  out ;  but  that 
any  thing  beyond  that  is  surplusage  and  unnecessary. 
In  high  treason,  indeed,  from  the  nature  of  the  offence, 
and  for  the  benefit  of  the  party  accused,  it  is  expressly 
enacted,  that  the  overt  acts,  or  in  other  words,  that  the 
nature  of  the  evidence  shall  be  set  forth  in  the  indict¬ 
ment  ;  but  that  is  an  exception  from  the  general  rules  of 
pleading,  and  need  not  be  adopted  in  any  other  case. 

To  the  fifth  and  ninth  counts  it  is  also  objected,  that  the 
means  of  impoverishing  Whitess ,  or  the  masters,  are  not 
set  forth,  but  expressed  in  the  vague  terms  by  indirect 
means.  This  has  been  decided  in  England  to  be  suffi¬ 
cient  in  the  case  so  often  alluded  to,  of  The  King  v. 
Eccles,j  on  the  principle  I  have  just  laid  down  ;  “  but 
“  the  court  held  that  it  is  not  necessary  to  set  out  the 
“  means ;  the  means  of  the  conspiracy  are  evidence  ;  con- 
“  spiracy  is  the  gist  of  the  charge.”  The  bare  conspira¬ 
cy  being  a  crime,  let  us  suppose  that  in  fact  the  thing 
agreed  upon  in  such  a  conspiracy  was  to  impoverish  a 
person  by  indirect  means,  the  detail  of  which  had  not 
been  matured  or  settled  ;  and  that  the  very  words,  “  in- 
u  direct  means”  had  been  used  in  the  agreement  entered 
into,  how  should  this  crime  be  stated  in  the  indictment, 
but  according  to  the  truth  of  what  took  place  ?  And  how 
can  the  gentleman  say  on  this  motion,  but  that  what  I 
have  stated  is  the  very  fact  we  shall  prove  ?  The  learn¬ 
ed  counsel,  however,  in  support  of  his  objection,  relies 
on  The  King  v.  Mason, If.  that  an  indictment,  charging  the 
defendant  with  obtaining  money  on  false  pretences  is  in¬ 
sufficient,  if  it  do  not  show  wrhat  the  false  pretences  are. 

*  Comp.  6S3.  f  Dog.  C.  C.Mn.  123.  ±  2D.&E.581. 


112 


The  distinction  between  the  two  eases  is,  after  a  mo¬ 
ment’s  consideration,  obvious.  To  obtain  money  by  a 
mere  lie,  is  not  indictable,  as  “  lend  me  some  money  ;  I 
“  want  to  pay  a  debt  for  which  I  am  dunned,”  when  no 
such  debt  or  dunning  had  any  existence  in  fact.  There 
must  be  fraud  or  cheating,  as  well  as  falsehood  in  the 
pretence.  The  nature  of  the  pretence  then  enters  as  an 
ingredient  into  the  formation  of  the  ofTenc  ?,  or  (to  use 
the  words  of  Mr.  Marryatt ,  in  his  argument  for  the  de¬ 
fendant  in  the  case  cited)  “  the  pretence  is  of  the  very 
essence  of  the  crime ,  and  constitutes  the  offence .”  The 
specific  pretence  must  therefore  be  spread  on  the 
record,  that  the  court  by  inspection  may  judge  whether 
it  be  such  as  constitutes  an  offence.  In  conspiracy,  on 
the  contrary,  the  means  do  not  constitute  the  offence  ; 
that  consists  in  the  conspiracy  independently  of  them. 
They  then  are  only  matter  of  evidence,  which  therefore 
need  not  be  set  forth  ;  but  the  false  pretences  are  of  the 
gist  of  the  crime,  and  therefore  must  be  specifically  sta¬ 
ted. 

I  have  thus  discussed  all  the  objections  which  occur  to 
me,  lest  I  should  seem  to  shrink  from  an  investigation 
that  has  been  so  triumphantly  provoked.  I  must,  how¬ 
ever,  suggest  to  the  court,  that  indictments  for  conspira¬ 
cies  are  never  quashed  ;  but  the  parties  put  to  plead  or  de¬ 
mur,  or  to  avail  themselves  of  their  objections  in  arrest 
of  judgment.  This  is  laid  down  in  one  of  the  cases  already 
cited,  Rexx.  Edwards .*  The  opposite  counsel  treat  this 
rule  as  arbitrary  and  foolish,  and  indeed,  deny  its  exist¬ 
ence.  I  believe  it,  however,  to  be  founded  on  a  wise 
principle,  and  not  peculiarly  framed  for  conspiracies,  but 


“  8  Mod.  321. 


113 


for  a  number  of  other  offences  :  that  principle  I  find  in 
Hawkins  *  “  yet  it  seems  that  judges  are  in  no  case 
“  bound  ex  debito  justicice ,  to  quash  an  indictment,  but 
“  may  oblige  the  defendant  either  to  plead  or  demur  to 
“  it.  And  this  they  generally  do,  where  it  is  for  a  crime 
“  of  an  enormous  public  nature ,  as  perjury,  forgery,  se- 
“  dition,  nuisances  to  the  highways,  and  other  offences 
“  of  the  like  nature.”  It  is  also  a  rule  with  respect  to 
the  quashing  of  indictments,  laid  down  in  the  same  case 
of  The  King'  v.  Edxuards ,  “  that  if  the  matter  be  doubt- 
“  ful,  the  defendant  must  plead  or  demur,”  or,  in  the 
language  of  Lord  Mansfield. ,  in  Rex  v.  Wheat lyf  “  the 
“  indictment  must  be  grossly  bad  to  have  the  court 
“  quash  it  at  once.”  That  this  indictment,  if  at  all  bad, 
is  not  grossly  so,  and  that  the  matter,  if  not  clear  for  us, 
is  at  least  doubtful  on  the  other  side,  must  be  apparent 
to  every  one  who  reflects  that  our  adversaries  have  found 
it  necessary  to  apply  to  the  task  they  have  undertaken, 
so  much  talent,  learning  and  research,  and  to  consume 
an  unprecedented  length  of  time  in  urging-  and  enfor¬ 
cing  their  objections. 

Sampson ,  in  reply.  In  this  unnatural  effort  to  sus¬ 
tain  monopoly  on  pretence  of  putting  down  monopoly,  and 
supporting  an  accusation  upon  principles  that  establish 
guilt  in  the  accusers,  the  learned  counsel  have  put  on  an 
air  of  confidence,  which  shows  that  nothing  can  dismay 
their  courage.  My  learned  countryman  seems  to  exult  in 
the  authority  of  his  great  reputation,  like  a  giant  about  to 
run  his  course.  But  in  a  cause  strong  as  ours  is,  I  fear  him 
not,  though  armed  but  with  a  pebble  from  the  brook. 

*  Vo!.  4.  b.  2.  c.  25.  p.  83.  s.  146.  f  1  Sir  IV.  Bl.  Reg  273. 

P 


114 


However  great  the  influence  of  his  well-earned  fame  and. 
zealous  countenance,  it  is  all  but  show,  but  shadow  against 
'substance.  I  might  apply  to  him  what  the  sententious 
poet*  said  of  the  great  Pompey,  “  stat  magni  nominis 
umbra."  I  might  remind  him,  that  on  the  eve  of  his 
defeat,  Pompey  the  great  did  crown  his  brows  with  boast¬ 
ing  laurels,  and  hung  his  tent  with  gaudy  wreaths  of 
triumph.  If  I  were  at  that  happy  time  of  life,  when  I 
could  go  to  school,  I  should  be  proud  to  take  my  lessons 
from  my  learned  friend  ;  but  not  such  lessons  as  he  gives 
us  now  in  favour  of  his  clients  ;  because,  I  know  that 
were  he  in  my  place,  he  would  give  better  reasons,  and 
better  arguments,  the  other  way. 

He  and  his  learned  colleague,  have  arraigned  me  for 
rashly  censuring  the  sublime  sources  of  their  common 
law.  I  have,  it  seems,  blasphemed  the  temples  of  bare¬ 
footed  Druids,  in  arguing  here  for  working  shoemakers,  t 
have  not  treated  with  becoming  reverence,  the  trial  by  the 
corsned,  wherein  the  life  of*  man,  his  guilt,  his  inno¬ 
cence,  were  made  to  turn  on  his  saliva!  glands  ;  and  he 
was  only  innocent  who  could  best  masticate  and  swallow  a 
lump  of  dough,f  and  not  be  choked  with  it.  I  have 
spoken  disrespectfully  of  trial  by  the  holy  cross ,  a  game 
not  half  so  fair  asblindman’s  buff,  on  the  success  of  which, 
death  and  eternal  infamy  awaited.  I  have  not  reverenced 
that  trial  by  hired  bruisers,  who,  by  thumps  of  sand 

*  Lucan. 

|  It  was  called  buccella  diglutienda,  and  was  of  bread  or  cheese.  For 
move  information  touching  this  barbarous  superstition,  see  Sficlm.  Gloss  4.39. 

The  form  of  administering  this  morsel  by  the  priest,  was  thus :  We  be¬ 
seech  thee,  O  Lord,  that  he  who  is  guilty  of  this  theft,  when  the  exorcised 
bread  is  offered  to  him  to  discover  the  truth,  that  his  jaws  may  be  shut,  his 
throat  so  narrow  that  he  may  not  swallow,  and  that  he  may  cast  it  out  of  his 
mouth,  and  not  eat  it.  This  old  form  called  e.xorcismus  panis  hordcacci  vcf. 
easel  is  in  Lindenbrogius,  p.  107. 


115 


bags  were  to  try  whose  cause  was  holiest  in  the  sight  ot 
God,  where  he  alone  was  justified  from  violence  and 
malice,  whose  champion  thumped  his  enemy  to  death,  or 
till  he  cried  out  craven :  -or  he  who  could  endure  such 
thumping  from  sun  rise  to  sun  set,  and  not  cry  craven  : 
that  also  proved  the  innocence  of  him  who  hired  the  body 
to  be  thumped.  1  have  not  spoken  with  religious  awe  of 
cudgel  playing,  that  ancient  mode  of  duelling  by  battel, 
when  the  lord  or  knight  who  had  the  broadest  back  and 
thickest  skull,  was  sure  to  turn  out  the  elect  of  God,  and 
have  his  adversary  hanged  for  being  beat.  And y£t  all  this 
was  common  law,  and  that  so  much,  that  the  good  citizens 
of  London  were,  by  special  charter,  exempted  from  such 
process.  Now,  if  what  the  learned  counsel  says  be  true, 
that  all  this  common  law  rests  only  in  abeyance — may  be 
revived  and  visited  upon  us  whenever  the  occasion  offers — 
then  he  should  quit  his  books  and  learn  the  cudgel.  He 
cannot  tell  how  soon  he  may  be  called  upon,  for  all  of  it 
may  not  be  yet  so  formally  abolished  as  not  to  be  again  re¬ 
vived,  seeing  two  centuries  of  nonuser  is  not  sufficient 
evidence  to  show  it  is  not  law. 

I  have  spoken  rashly  of  that  judicium  dei ,  called  the 
ordeal ;  where  guilt  or  innocence  was  proved  according  to 
the  rank  of  the  accused,  by  fire  or  water,  in  person  or  by 
deputy-persons  of  high  condition ,  judged  innocent  if 
they  could  hold  three  pounds  of  red  hot  iron  in  their  hands, 
or  walk  barefoot  and  blind  fold  over  nine  red  hot  plough 
shares. 

I  have  made  too  free  with  that  most  righteous  trial, 
where  for  small  offences,  the  hand  was  plunged  in  boiling 
water;  for  capital  ones,  the  arm  up  to  the  shoulder;  that  is 
to  say,  where  a  fore  quarter  of  the  man  was  boiled  to  try 
the  fact,  whether  the  rest  was  good  ;  when  he  whose  flesh 


116 


couid  not  resist  the  boiling  caldron,  was  put  to  death.  Of 
these  and  all  such  things,  I  have  spoken  tdo  disrespectful¬ 
ly  ;  because  these  sublime  doctrines  are  to  be  found  not  only 
in  the  laws  of  Ina ,  the  Mirror ,  and  in  Bracton ,  but  in 
more  modern  works  laid  down  as  law.  I  know  it  well,  so 
late  as  in  the  reign  of  John ,  some  grants  are  to  be  found 
to  bishops  and  to  clergy  of  this  sacred  right  of  boiling  and 
roasting  Englishmen ,  granted  by  the  name  of  the  judicium 
ferri  atque  ignis.* 

Now  if  the  argument  be  true,  that  common  law,  how¬ 
ever  obsolete,  may,  when  occasion  olfers  to  call  it  from 
its  slumbering  holes,  be  here  revived,  why  not  revive  it  all. 
No  part  of  it  can  be  more  obsolete,  than  the  doctrine  of 
indicting  men  for  trying  to  get  wages  in  this  free  country. 
It  is  more  than  obsolete,  it  never  yet  was  done  at  any 
period  of  our  history,  and  it  is  worse  than  useless  to  do  it 
now.  It  is  asked,  have  I  digested  any  better  code. — Truly 
I  have  digested  none  at  all.  On  my  admission  to  this 
bar,  I  took  an  oath,  and  took  it  with  sincerity  and  truth, 
to  uphold  the  laws  and  constitution  of  this  country.  I 
think  I  do  my  duty  in  upholding  them  against  such  doc¬ 
trines,  as  would  add  to  all  the  faults  of  youth,  the  dotage 
of  old  age.  Perhaps,  if  I  made  laws,  they  would  be  fool¬ 
ish  ones  ;  but  there  are  others  who  could  make  wiser  ones. 
Not  being  called  upon,  I  have  made  none.  A  man  may- 
speak  of  a  defect  which  it  is  not  his  business  to  cure.  I 
may  see  a  disproportion  of  feature  in  a  picture  or  a  statue, 
and  yet  not  be  a  painter  or  a  sculptor.  I  may  see  when  a 
leg  or  arm  is  broken,  although  I  have  not  skill  to  set  a 
bone.  Though  I  prefer  our  laws  to  every  other,  I  do  not, 
therefore,  think  them  like  those  of  Providence ,  but  I  think 


Spe’.m.  Gloss.  435. 


117 


them  great  improvements  upon  the  common  law,  said  to 
be  so  like  that  system.  This  surely  is  extolling  them 
enough.  I  stand  entirely  upon  the  laws  of  this  our  country 
and  the  wise  decisions  of  our  own  courts.  I  ask  for  nothing 
more  than  that  our  own  judges  be  free  to  exercise  their 
wisdom  and  intelligence,  and  be  as  little  trammeled  as  may 
be  with  antique  perversity.  I  wish  to  see  their  judg-r 
ments  shine  as  lights  to  other  nations.  If  foreign  tri¬ 
bunals  be  too  self-sufficient  or  too  ignorant  to  quote  them 
as  authority,  I  esteem  them  not  the  less  for  that.  I  will 
refer  to  our  reported  cases,  and  ask  which  are  those  that 
put  our  jurisprudence  in  the  most  exalted  point  of  view, 
those  liberal  and  reasoned  adjudications  on  commercial  and 
maritime  contracts  ;  those  turning  upon  the  general  laws 
of  nature  and  nations,  and  of  natural  justice,  when  our 
judges  have  borrowed  their  purer  lights,  not  from  Druids 
nor  Monks,  nor  from  the  nothern  hive,  but  from  the 
edicts  of  wise  princes,  from  the  matured  codes  of  intelli¬ 
gent  and  enlightened  people,  the  writings  of  learned  and 
philosophical  authors,  from  general  principles  of  acknow¬ 
ledged  right.  Not  from  those  crude  antiquities  which  I  am 
blamed  for  censuring,  but  after  rvhich,  some  learned  gen¬ 
tlemen  will  seem  to  yearn.  If  our  judges  had  once  pro¬ 
nounced  that  such  indictments  as  the  present  could  be 
supported  by  virtue  of  the  common  law  of  England ,  I 
should  then  give  my  opinions  vvsith  more  measure  ;  but  at 
present  I  have  their  universal  silence  in  my  favour,  and, 
therefore,  I  speak  boldly.  The  various  authors  cited  by 
the  gentlemen,  touching  the  passages  in  Haxvkins  so  much 
relied  upon,  I  have  examined,  and  hope  successfully  to 
show  their  true  signification.  I  do  not  think  our  adver¬ 
saries  have  given  a  sufficient  answer  to  overthrow  the  plain 
interpretation  I  have  given  them.  I  still  rely  on  the  ori- 


118 


ginal  authors  for  the  construction  I  have  made,  and  to  show 
that  the  true  sense  has  been  corrupted  and  misunderstood. 
By  reference  to  Rollers  Abridgment,  I  trust  I  have  shown, 
that  Hawkins  could  not  mean  that  strange  assertion,  that 
there  was  no  difference  between  a  combination  to  do  good 
and  bad,  between  an  honest  combination  and  a  false  conspi¬ 
racy  to  do  a  wicked  crime.  And  touching  combinations 
to  impoverish  by  indirect  means,  without  showing  any 
thing  unlawful  in  the  means  :  besides  that  common  sense 
is  shocked  by  such  a  doctrine.  I  flatter  myself  the  expla¬ 
nation  I  have  given,  will  be  agreeable  to  this  honourable 
court,  as  rescuing  the  law  which  it  administers,  from  the  re¬ 
proach  of  folly  and  injustice.  The  gentlemen  have  quoted 
a  number  of  authorities,  most  of  which  we  cited.  They  en¬ 
deavoured  to  strengthen  their  case  by  multiplying  refer¬ 
ences  ;  but  I  refer  the  court  once  more  to  those  authorities, 
and  I  repeat  w  hat  I  have  said  before,  that  in  the  ancient 
writers  nothing  can  be  found  to  warrant  such  positions,  and 
that  the  modern  authorities  are  nothing  more  than  echoes 
of  one  single  error ;  for  whether  it  be  annotations  upon 
Hawkins ,  commentaries  upon  the  Commentaries ,  the  Crown 
Circuit  Companion ,  the  Crown  Circuit  Assistant,  Wilson’s 
Lectures ,  Wentworth’ s  Pleadings ,  Burn’s  Justice ,  or 
McNally,  or  East,  or  any  of  them,  they  are  all  founded 
on,  and  all  refer  to,  that  miserable  book,  that  alias  dictus , 
which  the  learned  counsel  has  scarcely  ventured  to  defend, 
which  the  King’s  Bench  and  that  learned  reporter  Sir 
James  Burrow,  have  justly  stigmatized,  and  w’hich  I  say 
ought  to  be  weeded  out  of  our  libraries  as  a  very  rank 
weed  which  scatters  its  bad  seeds,  and  has  already  overrun 
the  soil  and  choked  all  reason.  This  is  the  evil  of  all 
paradoxes,  their  strangeness  captivates  attention,  and 
aving  the  attraction  of  the  marvellous,  they  are  seized 


2 


119 


upon  as  curiosities,  and  preferred  by  the  idle  and  affected, 
to  things  more  simple,  and  more  solid,  more  true  and 
profitable. 

The  gentlemen  in  their  rounds  of  references,  have  dri¬ 
ven  us,  as  Tony  Lumpkin  drove  his  dear  Mamma ,  so  many 
turns  round  Crackscull  Common ,  still  never  quitting  the 
point  he  started  from. 

I  have  said  that  all  the  conspiracies  mentioned  in  the 
books,  unless  those  in  the  “  miserable  bad  book”*  or  those 
erroneous  sayings  derived  from  it,  turn  upon  the  evils  ex¬ 
pressed  in  the  declaratory  laws  touching  maintenance , 
champerty ,  or  false  conspiracy.  I  do  not  think  the  cases 
relied  on  though  taken  in  their  full  extent  and  latitude, 
3how  any  thing  to  the  contrary.  Two  of  the  three  cases  cited 
by  Hawkins  as  instances,  being  false  conspiracies,  show 
this  explicitly  viz.  “  falsely  to  indict  a  man,  or  to  charge  a 
“  man  with  a  bastard  and  Hawkins  refers  to  conspiracies 
only,  which  are  infamous,  and  such  as  subject  the  criminal, 
if  not  to  the  villanous  judgment,  at  least  to  infamous  pu- 
ishment,  as  pillory  and  branding  ;  so  that,  unless  the 
counsel  will  maintain,  that  our  poor  honest  journeymen 
are  worthy  to  be  pilloried  or  branded  for  not  working  with 
Edward  Whitess ,  (who  had  first  entered  into  their  society 
and  then  separated  from  them,)  the  authority  of  Hawkins , 
proves  for  them  less  than  nothing.  The  third  case  which 
Hawkins  cites,  is  then  the  only  remaining  stay-rope  of 
their  arguments,  and  it  would  be  piteous  to  adopt  such  a 
ease  as  an  authority.  For  unless  we  had  tubwomen  or 
tubmen,  excisemen  and  excise  houses,  and  above  all,  a 
king  who  had  a  revenue  of  180,000/.  sterling  of  duties 
upon  small  beer,  we  can  scarcely  view  it  as  a  case  in  point. 
Tt  is  sui generis,  and  anomalous.  The  variety  of  opinions 


*  S  Mod 


120 


amongst  the  judges  who  ruled  it,  the  irregular  finding  of 
the  jury,  and  the  peculiar  reasons  assigned,  viz.  that  the 
impoverishing  the  excisemen,  “  tend  to  the  public ,”  and 
affected  the  king’s  revenue,  all  these  considerations  show 
that  it  has  no  affinity  with  any  other  cases  under  the  En¬ 
glish  laws,  and  certainly  it  bears  in  no  shape  upon  the  dis¬ 
pute  between  our  journeymen  shoemakers  here  in  this  city 
of  Nexv-Tork ,  and  their  employers,  nor  shows  in  any 
shape  which  of  the  two  contending  parties  is  most  to  blame, 
or  whether  either  of  them.  The  present  is  a  contestation 
where  one  side  endeavours  to  get  as  much  wages  for  lawful 
labour  as  it  can  ;  the  other,  to  get  as  much  labour  for  as 
little  money  as  it  can.  And  again  I  would  advise  all  who 
take  part  in  politics  or  in  elections  in  this  country,  to  be¬ 
ware  ;  for  if  it  be  the  law  that  all  confederacies,  whether 
the  object  of  them  be  good  or  bad,  are  common  law  con¬ 
spiracies,  what  man  is  innocent  that  ever  went  to  an  elec¬ 
tion,  or  gave  a  vote,  with  others  of  his  party,  for  govern¬ 
or  or  president.  I  have  shown  that  nothing  in  the  English 
law,  repugnant  to  our  constitution,  or  our  statutes,  can  be 
law,  and  I  have  argued  that  this  prosecution  is  repugnant 
to  our  constitution,  because  it  is  founded  on  the  doctrine  of 
unequal  rights  :  and  that  it  is  repugnant  to  our  statute, 
which  defines  conspiracy  in  terms  so  express,  that  both  the 
learned  gentlemen  have  chosen  rather  to  be  silent  on  that 
head,  than  to  attempt  an  answer.  They  affect  to  speak  as 
though  they  had  not  heard  us  mention  that  statute,  which 
is  of  more  importance  to  this  case,  of  more  imperative 
authority  within  this  city,  and  this  state,  than  all  the  laws 
of  England ,  and  of  all  the  universe  besides. 

To  show  that  inconvenient  English  laws  were  not  en¬ 
forced  even  when  this  country  was  a  colony,  I  have  cited 
the  sound  theory  of  Judge  Tucker ,  and  also  the  case  of  the 


121 


two  presbyterian  clergymen,  from  Smith's  New-York. 
There  is  indeed  in  the  close  of  that  same  history  an  ac¬ 
count  of  a  dispute  touching  the  erecting  a  court  of  equity, 
by  the  legislative  power  of  the  colony,  with  the  opinion  of 
Mr.  John  Randolph  of  Virginia ,  who  censures  the  blind¬ 
ness  of  the  New-York  lawyers  in  following  a  common  error, 
that  the  statutes  of  England  were  in  force  here.  “  If  we 
“  wade  into  the  statutes,”  he  says,  “  no  man  can  tell  what 
“  the  law  is  ;  it  is  certain  all  of  them  cannot  bind,  and  to 
“  know  which,  was  always  above  my  capacity.”  Now, 
Sir,  yohn  said  right  in  that,  but  even  he,  with  all  his  wis¬ 
dom,  would  have  given  to  the  blind  lawyers  of  New-York 
a  very  curious  code  :  for  if  the  statutes  of  England  were 
none  of  them  binding,  and  the  common  law  was  their  only 
rule,  most  strange  results  would  follow.  Lands  would  have 
been  still  unalienable  by  deed  or  will ;  they  would  still  be 
burthened  with  the  feudal  tenures  and  all  their  evils  ;  they 
would  have  had  courts  of  chivalry,  knight  service,  and 
villenage,  with  grand  and  petty  sergeantry,  aids,  ward¬ 
ships,  primer  seisins  and  relief,  and  all  the  feudal  tenures 
and  their  incidents,  ■which  at  the  restoration  of  king 
Charles  were  abolished  by  a  single  statute.  My  object  in 
reviewing  these  antiquities  was  to  show  them  absurd  and 
unfit  for  our  consideration.  And  further  also,  that  even 
by  the  common  law  the  present  indictment  could  not  be 
sustained,  not  even  in  England.  The  authority  of  Haw¬ 
kins ,  I  am  willing  to  admit,  is  great,  where  it  applies,  and 
is  not  misrepresented  ;  but,  as  Lord  Mansjield  said  in 
speaking  of  Sir  William  Blackstone ,  it  is  not  always  safe  to 
trust  great  names  too  far,  for  such  will  often  be  in  contra¬ 
diction  with  each  other  ;  for  instance.  Lord  Coke  makes  the 
acquittal  of  the  party  accused  by  false  conspiracy  a  requi¬ 
em 


122 


site  towards  indicting  the  conspirators,  but  Hawkins ,  in  the 
book  and  chapter  cited,  lays  down  the  law  as  generally 
applicable  to  all  conspiracies,  whether  they  be  executed  or 
not  ;  in  which  last  case  there  could  be  neither  trial  or  ac¬ 
quittal.  “  Who  shall  decide  when  doctors  disagree  ?” 

Let  us  then  give  to  Hawkins  the  only  rational  construc¬ 
tion  his  words  will  bear,  and  there  will  be  not  merely  one 
difficulty  less,  but  none  at  all.  And  if  any  cases  have, 
through  mistake  of  that  authority,  encroached  upon  the  an¬ 
cient  common  law,  let  them  too  go  for  nothing.  The  reason 
given  in  old  books  why  courts  of  justice  have  refused  to 
quash  indictments  for  conspiracy,  helps  out  our  argument 
materially,  and  makes  against  our  adversaries  :  that  is, 
the  “  enormity  of  the  offence f  which  is  compared  by 
the  old  authors  to  the  corrupt  forswearing  of  jurors.  And 
this  being  universally  extended  to  all  conspiracies,  what  can 
more  strongly  show  that  by  the  ancient  common  law,  none 
were  indicted  for  conspiracy,  but  those  who  had  been 
guilty  of  some  enormous  falsehood  and  corruption .  The 
penal  code  in  England ,  has,  from  time  to  time,  become 
more  penal,  and  is  more  sanguinary  at  this  day  than  any 
in  the  world :  ours  is  tempered  by  a  milder  scale,  and  it 
is  all  the  better,  as  is  proved  by  this,  that  fewer  crimes  of 
deep  atrocity  are  committed  here,  than  in  England.  If 
English  statutes  have  made  conspiracies  of  innocent  acts, 
must  we  therefore,  who  have  no  statutes  of  the  kind,  pro¬ 
ceed  as  if  we  had?  If  English  judges  extend  the  spirit  of 
those  statutes  to  cases  not  within  them,  must  our  judges 
stoop  from  their  dignity  to  follow  them  ?  What  shows  that 
in  the  highest  of  all  offences  indictments  may  be  quashed, 
is,  that  before  the  statute  of  William  Mary*,  they  were 


*  Stat.  7.  cap.  3. 


123 


quashed  for  such  slight  exceptions  as  misreciting, misspelling 
or  bad  latin,  even  in  high  treason  :  and  since  that  statute, 
they  may  be  quashed,  provided  the  exception  be  well  and 
timely  taken  in  the  court  where  the  trial  is  to  be,  and  be¬ 
fore  any  evidence  be  given  on  the  indictment. 

One  of  the  counsel  cited  a  case  from  Blackstone’s  Re - 
ports ,*  to  show  that  the  facts  of  conspiracy  might  be  col¬ 
lected  from  collateral  circumstances.  That  I  take  to  re¬ 
late  to  the  question  of  proof,  but  to  have  no  relation  to  the 
sufficiency  of  the  indictment,  upon  which  the  court  are  to 
decide,  and  that  upon  the  face  of  it. 

Mr.  Riker  cited  Hume’s  History  of  England ,f  touching 
conquered  and  ceded  countries  ;  it  does  not  in  any  shape 
affect  or  alter  the  view  we  have  already  taken  of  the  sub¬ 
ject,  being  the  same  doctrine  we  ourselves  adopt. 

The  argument  from  the  assembly  journals,^  that  courts 
of  justice  were  appointed  in  the  colony,  with  the  same 
powers  as  those  in  England ,  may  be  answered  by  the  ar¬ 
guments  I  have  referred  to,  touching  the  appointment  of 
an  exchequer.§  The  same  counsel  argued,  that,  by  our 
constitution,  the  common  law  was  all  adopted,  except  what 
was  expressly,  and  I  understood  him  to  mean  particularly , 
excepted.  I  think  the  exception  much  more  general,  for 
all  that  is  repugnant  to  the  constitution  then  established  on 
the  broadest  basis  of  equal  rights,  was  excepted  ;  and  equal 
rights  there  cannot  be,  if  these  men  can  be  prosecuted  by  a 
combination  of  their  employers,  merely  because  they  meet 
and  determine  not  to  zvork  with  them  for  the  wages  they 
are  pleased  to  give.  And  we  have  heard  of  no  case  of  con¬ 
spiracy  at  common  law,  where  the  combination  was  merely 
not  to  do  what  no  law  made  it  obligatory  to  do — most  cer¬ 
tainly  there  can  be  none. 

*  1  Bloc.  Rep.  392-  t  C.  64.  p.  432.  t- 1  J»w\  Ass.  p,  5.  §  Smith’s  New. 
fork,  ad  finem. 


124 


The  numerous  references  of  the  learned  gentlemen, 
mean  no  more  than  what  a  merchant  does  when  he  draws 
his  hills  per  duplicata,  triplicata,  quadruplicata,  and  so  on, 
they  being  all  referable  to  one  single  case,  and  that,  in  point 
of  credit,  no  better  than  a  blanke  indorsement.  What  is  it  all 
but  pouring  fi  om  vial  into  vial,  unless  it  be  that  they  have 
shaken  the  bottle  and  raised  up  all  the  dregs  that  had  pre¬ 
cipitated  to  the  bottom. 

The  District  Attorney-General,  has  vouched  the  Empe¬ 
ror  Z eno  ;  he  might  as  well  have  called  upon  all  the  twelve 
Ccesars ,  with  their  diadems  upon  their  heads,  for  any 
thing  we  have  to  do  with  either  king  or  Kayser.  He  says 
we  have  lived  so  happily  under  the  common  law,  that  we 
ought  never  to  depart  from  it.  He  argues  from  the  decla¬ 
ration  of  independence,  that  the  people’s  chief  complaint 
was,  that  they  had  been  deprived  of  the  best  benefits  and 
blessings  of  the  common  law!  To  be  deprived  of  the  law’s 
benefits  might  be  a  very  just  complaint,  and  yet  that  law 
might  need  a  great  reform.  The  revolution  which  changed 
the  entire  form  of  government,  from  monarchy,  the  soul 
of  common  law,  to  a  republic,  which  was  a  stranger  to  it, 
shows  the  sense  of  the  whole  nation  upon  that  head,  more 
strongly  than  words  can.  There  are,  besides,  set  forms  and 
modes  of  speech  which  habit  sanctions  and  which  suit  them¬ 
selves  to  times  and  circumstances,  but  which  are  nevertaken 
at  the  letter.  In  England,  in  Scotland ,  and  in  Ireland,  I 
have  often  heard  such  phrases,  which  meant  nothing.  I 
have  heard  men  talk  of  restoring  the  constitution  to  its 
original  purity,  but  no  man  ever  fixed  the  epoch  of  that 
purity.  All  these  are  words  of  form  and  custom.  The 
Cock-lane  ghost  gives  us  no  apprehensions  ;  we  admit,  the 
ghQst  could  never  kill  nor  put  in  jeopardy  the  living  man  ; 
but  then  there  was  a  false  conspiracy,  falsely  to  impute  the 


125 


crime  of  murder,  by  making  it  believed  that  the  ghost  of 
the  deceased  haunted  the  murderer’s  house.  That  was  an 
overt  act  of  false  conspiracy  to  charge  or  to  impute  to  an 
innocent  man  the  heinous  crime  of  murder.  There  was  there 
that  tinge  of  falsehood,  frauds  and  malice,  without  which  by 
the  common  law  there  could  be  no  indictable  conspiracy. 
Tlhe  Kingv.  Eccles*  was  cited  to  show  that  overt  acts  need 
not  be  set  out,  because  the  conspiracy  is  the  gist  of  the  in¬ 
dictment,  and  the  means  are  but  the  evidence,  which  need 
not  be  set  out.  I  answer,  that  being  a  statutable  offence,  the 
description  is  technical ,  and  if  it  be  brought  by  averments 
within  the  statutory  description  it  is  sufficient.  The  other 
precedents  in  the  same  book  touching  conspiracies,  not  to 
work  but  at  certain  rates,  or  at  the  usual  rates ,  are  evidently 
referable  to  the  sta|utes  of  labourers  and  the  very  term 
usual  rates  comes  from  the  first  statutes ,  occasioned  by  the 
plague,  when  the  labourers  were  limited  to  the  wages 
“  usual  in  the  four  last  years.'’’’  The  instance  of  barratry 
relied  on  by  the  counsel,  is  stronger  still  for  us,  for  there 
he  says,  that  the  overt  acts  are  never  set  out.  True,  but  I  ask 
him  for  what  reason  are  they  not  ?  Because  the  term  being 
technical,  “  communis  barrator no  other  would  suffice. 
By  that  alone,  the  offence  can  be  described,  and  seeing  that 
fh  cases  of  barrators  and  common  scolds  are  laid  down  as 
exceptions,  they  prove  the  rule,  that  in  all  other  cases  the 
overt  acts  must  be  set  out,  both  that  the  court  may  see 
what  the  offence  is,  or  whether  it  be  any,  and  that  the  par¬ 
ty  may  know  for  what  he  is  to  answer-  and  be  prepared  to 
defend  himself  against  it.  Now,  as  common  scolds  and 
common  barrators  could  not  be  punished  for  any  particular 

*  V.  C.  Ass.  p.  123; 


126 


act,  but  merely  for  their  general  disturbance,  it  would  be 
idle  to  set  out  particulars  when  the  offence  is  general.  The 
defendants  there  have  notice  that  their  general  character  is 
put  in  issue,  and  if  they  can  disprove  the  charge  of  being 
common  scolds  or  common  barrators,  no  more  is  requisite. 
Yet  on  trials  for  barratry,  the  learned  counsel  know  that  it  is 
now  the  settled  practice  not  to  let  the  prosecutor  go  into  the 
trial,  without  first  giving  the  defendant  a  note  of  the  par¬ 
ticular  matters  which  he  intends  to  prove  against  him ;  for 
otherwise,  it  is  justly  said,  it  would  be  impossible  to  pre¬ 
pare  a  defence  against  so  general  and  uncertain  a  charge, 
which  may  be  proved  by  such  a  multiplicity  of  different 
instances  of  which  the  indictment  furnishes  no  notice. 
This  substantiates  the  objection  of  my  learned  colleague, 
that  the  precedents  cited  against  us,  particularly  in  4  Went¬ 
worth. ,*  although  of  a  technical  and  statutable  offence,  do 
minutely  set  out  the  overt  act,  and  describe  the  offence 
with  great  certainty,  although,  perhaps,  in  that  case  scarce¬ 
ly  necessary  ;  but  here,  where  the  indirect  means  ought  to 
be  undoubtedly  specified,  they  are  not.  Those  cited  from 
the  same  volume f  are,  undoubtedly,  also  offences  made  by 
statute.  That  against  the  carriers  can  be  nothing  else, 
though  it  concludes,  for  the  reasons  given,  at  common  law. 
This  wonderful  compilation  of  the  learned  Mr.  Wentworth, 
with  all  its  labyrinths  of  indexes  and  apologetic  prefaces, 
in  which  the  author  seems  to  accuse  the  dulness  of  man¬ 
kind,  for  not  comprehending  his  methods  and  his  mean¬ 
ings,  and  which  has  caused  more  nervous  head-aches,  than 
tobacco  or  strong  drink,  is  called  a  very  high  authority. 

5  Mod.  18.  1  Lord  Hay.  490.  12  Mod.  516.  2  Atk.  340.  1  Hawk.  P 

C.  c.  81.  s.  13.  and  vide  4  Went.  p.  100.  f  4  Went.  p.  113.  120. 


5 


127 


Pile  the  ten  volumes  upon  one  and  another,  like  w  Pe- 
“  lion  upon  Ossa,”  it  is  breast  high,  but  otherwise  it  is  no 
higher  than  the  sun  after  he  sets  and  leaves  the  world  in 
darkness.  Call  it  deep,  or  call  it  dark,  but  never  call  it 
high.  My  learned  friend  has  argued  that  the  common 
law  is  always  in  abeyance,  and  that,  whenever  it  chooses  to 
make  an  excursion  from  England ,  and  pay  us  a  visitation, 
it  is  entitled  to  the  honours  of  the  sitting,  and  the  rights 
of  citizenship  in  secula  seculorum ;  if  so,  it  is  like  the  sword 
of  Democles ,  hanging  over  our  heads,  and  we  had  better 
reconcile  ourselves  to  heaven  betimes,  for  we  can  never 
say  when  it  may  fall  upon  us.  He  says  Hawkins  is  never 
wrong  ;  I  have  shown  an  instance  where  he  and  the  great 
Lord  Coke  are  in  opposition.  One  must  be  in  the  wrong. 
I  give  the  counsel  his  choice,  utrum  lorum  P  The  case  he 
has  cited  from  East’s  Crown  Law,*  is  conclusive  for  us  and 
not  for  him ;  particularly  when  taken  with  the  contents  of 
the  whole  chapter  of  which  it  makes  a  part.  The  title  of 
that  chapter  is,  “  Forcible  or  fraudulent  abduction ,  mar- 
“  riage  or  defilement.”  *  Now  this  classification  alone 
shows  the  meaning  of  this  intelligent  and  experienced 
writer  :  and  the  circumspection  with  which  he  travels  over 
the  ground  where  others  have  gone  astray,  is  a  fresh  proof 
of  his  ability  and  his  good  sense.  He  shows  how,  in  an 
indictment  for  a  conspiracy  to  marry  a  pauper,  Judge  Ful¬ 
ler  held  it  essential  that  there  should  have  been  corrupt  so¬ 
licitations.  In  that  case,  too,  there  was  such  perversion  of 
all  principles  of  justice,  law,  religion,  and  morality,  that, 
if  it  did  not  entirely  fall  within  the  definition  of  false  con¬ 
spiracy,  it  fell  within  the  reason  and  principles.  But  how 
unlike  is  that  to  the  case  of  men  contending  for  their  un- 


1  Easf.i  C.  h.  462. 


128 


disputed  right  of  selling  their  labour  for  the  best  price 
they  can.  How  can  that  be  a  false  conspiracy  ?  And  if  it  be 
not  a  false  conspiracy,  it  is  no  conspiracy  at  common  law . 

But  the  learned  counsel  denied  my  position,  that  nothing 
was  held  conspiracy  by  the  common  law,  that  was  not 
crimen  falsi,  and  he  cited  some  cases  to  disprove,  which, 
I  think,  prove  it:  for  although  they  are  among  those  modern 
cases,  which  have  been  more  loosely  decided  than  the  an¬ 
cient,  and  may  not  exactly  and  entirely  fall  under  the  defi¬ 
nition  of  maintenance,  or  false  conspiracy,  or  champerty, 
yet  that  they  sound  in  fraud,  deceit,  and  corruption  is 
most  undeniable,  and  in  that  differ  utterly  from  the  case  in 
hand.  They  are  perversions  of  justice  and  right,  for  cor¬ 
rupt  and  dishonest  purposes.  The  present  case  has  no 
tincture  of  fraud,  deceit  or  corruption,  whatsoever,  nor 
is  it  tending  to  any  act  which  any  law  or  statute  has 
made  criminal.  The  case  of  Sir  Francis  Blake  Delaval, 
was,  as  the  counsel  himself  has  stated,  a  confederacy  to 
have  Miss  Cately  assigned  (she  being  then  an  apprentice) 
for  the  purposes  of  prostitution — a  horrible  perversion  of 
morals,  law,  and  religion.  Does  it  follow,  because  such 
an  offence  was  punished  as  conspiracy,  that  shoemakers 
who  meet  to  demand  wages  for  labour,  and  whose  utmost 
malice  goes  no  further  than  a  determination  not  to  work 
for  those  that  undervalue  their  honest  industry — Is  it  pos¬ 
sible  to  place  my  argument  in  a  stronger  light  than  by  the 
opposition  of  these  two  cases  ? 

The  learned  gentlemen  cited  The  King'  v.  Cope *  to  the 
same  effect,  and  to  it  I  gave  the  same  answer.  The 
"charge  was  that  of  hiring  a  person  to  put  grease  into  the 


1 


*  Strange,  144. 


129 


paste  of  the  king’s  card  maker,  in  order  to  spoil  the  cards, 
and  impoverish,  by  such  indirect  or  unlawful  means,  the  ma¬ 
nufacturer.  Does  this  case  show  that  I  was  wrong  in  saying 
that  ail  conspiracies  at  common  law  must  be  infected  with 
the  crimen  falsi  P  But  since  our  declaratory  statute,  I  do  not 
think  either  of  these  offences  could  be  indicted  here  as  con¬ 
spiracies;  because  it  must  be  something _yery  heinous  to 
amount  to  a  conspiracy,  which,  as  our  statute  shows  full 
clearly,  differs  from  all  other  prosecutions  in  this,  that  the 
intention  is  punished,  though  the  crime  be  no  otherwise 
effected  than  by  the  mere  determination  to  commit  it. 
If,  indeed,  the  acts  were  executed ,  I  think  they  would  be 
clearly  indictable,  even  here,  though  bare  conspiracy  to 
do  them  would  not,  because  we  have  a  positive  statute 
defining  conspiracy,  and  they  come  not  within  it. 

The  counsel  argued  further  from  Hczvkinsf  that  for 
conspiracies  to  impoverish  a  certain  set  of  lawful  traders, 
an  information  would  lie  in  England:  and  in  an  anonymous 
case,  an  information  was  granted  against  button  makers  for 
combining  by  covenants  not  to  sell  under  a  set  rate ,  and 
Holt,  C.  J.  said,  “  it  is  fit  that  confederacies  by  those  of  a 
u  trade  to  raise  their  rates  should  be  suppressed.”  This 
is  all  answered  by  what  we  have  already  so  often  said ; 
that  in  England  there  are  statutes  against  such  confedera¬ 
cies,  which  statutes  fix  the  rates ;  and  to  combine,  and  that 
by  sealed  covenants  against  the  positive  and  declared  law 
of  the  land,  was  manifestly  indictable.  Being  indictable, 
the  Court  of  King’s  Bench  take  upon  themselves  to  grant 
an  information,  a  practice,  however,  that  our  constitution 
prohibits,  so  different  is  the  genius  of  our  laws.  The  case 

*  B.  2.  c.  26.  vol.  4.  p.  85. 

R 


130 


of  the  brewers  is  also  relied  on  very  principally  by  my 
learned  friend,  to  support  the  meaning  given  (as  we 
maintain  erroneously)  to  the  text  cf  Hawkins.  I  answer, 
its  juxtaposition  alone,  is  an  argument  that  it  was  for  some 
reason  considered  by  Hawkins ,  or  those  from  whom  he 
copied ,  as  a  false  conspiracy,  founded  in  oppression  or  cor¬ 
rupt  maintenance  of  each  other,  through  right  and  wrong.  It 
is  a  case  in  which  the  judges  seemed  much  perplexed,  and 
by  no  means  agreeing  with,  or  among  themselves;  but 
Hawkins  was  then  treating  specifically,  of  false  and  mali¬ 
cious  conspiracies  against  public  justice,  and  therefore 
must  have  meant  to  class  that  case  amongst  them,  as  appears 
from  the  whole  of  the  cases  he  cites,  and  their  context.  It 
is  besides  a  case  so  extraordinary  and  so  anomalous,  that  I 
do  not  think  it  necessary  to  argue  upon  it  one  way  or  other. 

I  had  the  good  fortune,  in  citing  the  work  entitled  “  Bol- 
“  ton’s  Justice”*  to  have  the  sanction  of  my  learned 
friend,  who  certifies  the  merit  of  that  book.  He  has  him¬ 
self  relied  upon  it  strongly.  It  certainly  contains  both 
principles  and  precedents  of  great  antiquity,  and  curiosity. 
I  quoted  it  for  a  purpose  quite  different  from  that  of  my 
friend.  I  will  again  recur  to  it,  to  show  that  much  of  what 
was  there  laid  down  and  held  good  law,  would  now  with  us 
be  shocking  to  humanity.  I  shall  read  one  only  of  the  many 
precedents  of  impeachments  and  convictions  which  this 
valuable  treatise  contains  ;  it  may  serve  as  a  sample  of  the 
whole.  The  English  title  given  to  this  precedent,!  which 
itself  appears  to  be  a  transcript  of  a  record,  and  is  in  latin, 
is  thus  : 


*  Written  by  Sir  Richard  Bolton,  ar.tl  published  in  16S3- 
f  Bolton’s  Justice,  170. 


131 


“For  bewitching  a  horse,  whereby  he  wasted, 
“  and  became  worse.”  Then  follows  the  record  of 
judgment  and  execution.  Jur.  &c.  present.  quodS.B. 
de  C.  in  com.  E.  viduay  die ,  &fc.  quasdam  artes  nequissimas 
{Anglice  vocat  inchantments  and  charmes)  apud  C. 
prced.  in  com.  E.  praed.  malitiose  et  diabolice,  in,  super  et  con¬ 
tra  quondam  equum,  color,  albi,  pretii  4 /.  de  bonis  et  catall. 
cujusdam  I.  S.  de  C.  praed.  in  dicto  com.  E.  gent,  existentem 
exercuit  et  practicavit  ;  per  quod  idem  equus  diet.  I.  S.  die 
praed.  apud  C.  praed.  omnino  pejoratus  est  et  vastatus : 
contra  pacem  diet.  dom.  regis ,  et  contra  formam  stat.  in 
hujusmodi  casu  edit,  et  provis.  Before  we  have  any  com¬ 
ments  upon  this  record,  let  us  have  it  into  plain  and  literal 
English. 

The  jurors,  &c.  upon  their  oaths  present,  that  S.  B.  of 
C.  in  the  county  of  E.  widow,  on  the  day  of  ,  in 
the  year  ,  at  the  said  C.  in  the  county  of  E.  aforesaid, 
certain  most  wicked  acts  (called  in  English ,  enchantments 
and  charms')  at  C.  aforesaid,  in  the  county  of  E.  aforesaid, 
maliciously  and  diabolically,  upon  and  against  a  certain 
white  horse,  of  the  value  of  4/.  of  the  goods  and  chattels  of 
a  certain  I.  S.  gentleman,  of  C.  aforesaid,  on  the  day  afore¬ 
said,  and  in  the  county  aforesaid  then  being,  did  exercise 
and  practise,  by  means  of  which  the  said  horse  of  the  said 
I.  S.  on  the  day  aforesaid,  at  C.  aforesaid,  greatly  worsten- 
ed  ( pejoratus  est )  and  wasted  away,  against  the  peace  of 
our  said  lord  the  king,  and  against  the  statute  in  this  case 
made  and  provided. 

I  have  seen  charming  widows ;  I  have  heard  of  wi¬ 
dows  bewitched ;  I  have  heard  it  said  of  some  that  they 
were  ugly  enough  to  frighten  a  horse  ;  I  have  read  that  a 
great  musician  of  old  times  could  set  all  the  bears  a  dan- 


132 


cing  by  the  charms  of  his  music  ;  I  have  read  of  the  duets 
of  Damon  and  Alphesibceus ,*  that  used  to  make  the 
cows  wonder,  and  put  the  lynxes  to  sleep,  but  those 
tales  I  took  to  be  poetical  fables.  However,  I  find  it  now 
a  matter  of  record,  the  truth  of  which  no  man  must  ques¬ 
tion,  that  a  most  wicked  widow  did,  with  her  English  charms 
and  enchantments,  so  inthral  a  proud,  milk  white  steed,  of 
no  less  value  than  four  pounds  sterling,  and  being  of  the 
goods  and  chattels  of  a  gentleman,  in  so  diabolical  a  man¬ 
ner,  that  he  pined  and  languished,  and  that  she  did  this 
barbarous  deed  against  the  peace  of  her  sovereign  lord  the 
king.  I  find,  however,  that  this  cruel  widow  did  not  go 
unpunished,  for  her  sentence  is  recorded  in  a  memorandum 
added  in  the  margin  in  these  words,  “  judgment,  a  year’s 
u  imprisonment,  and  every  quarter  to  stand  six  hours  in 
“  the  pillory  !  ?  !”  [Mr.  S.  here  drew  a  picture  of  the  con¬ 
sternation  of  the  unfortunate  woman,  who  in  vain  denied 
that  she  was  a  witch,  until  overcome  by  the  awe  of  the 
grave  judges,  and  the  oaths  of  the  jurors,  she  was  forced 
to  acknowledge  her  crime  no  longer  deniable,  and  to  suffer 
her  sentence  amidst  the  reprobations  and  imprecations  of 
the  enlightened  community,  who  reverenced  these  laws 
with  stupid  adoration.] 

Now,  will  this  honourable  and  enlightened  Court  for  the 
first  time,  institute  in  this  country,  an  unprecedented  pro¬ 
secution,  incompliance  with  such  a  book  of  precedents  ;  or, 
is  it  possible  to  look  but  with  distrust  upon  precedents, 
drawn  from  such  sources  ? 

My  learned  antagonist  has,  in  his  zeal  for  his  clients, 
cited  McNally's  Justice  of  the  Peace ,  which  is  like  the  rest 

*  Immemor  herbarum  quos  est  mirata  juvenca 

Certantes,  quorum  stupefuche  cartnine  !i/nces. 

Virg.  Eel.  8. 


i 


133 


©fall  these  compilations,  a  repetition  of  preceding  ones.  I 
should  have  great  confidence  in  the  work  of  an  author  so 
versed  in  the  criminal  law,  as  I  know  that  gentleman  to  be  ; 
but  I  think  my  learned  friend  has  cited  the  very  worst 
part  of  his  hook,  and  that  which  does  least  credit  to  the 
author,  and  which  is  of  all  others  the  least  congenial  to  the 
avowed  sentiments  of  the  counsel  himself.  From  the  pas¬ 
sage  he  has  read,  it  would  appear,  that  the  unhappy  state 
of  the  Irish  people  was  not  so  much  owing  to  bad  laws,  op¬ 
pressive  institutions,  and  foreign  government,  as  it  is 
brought  upon  themselves  by  combinations  of  this  nature. 
I  confess  I  never  expected  to  have  had  this  question  to  dis¬ 
cuss  with  my  honourable  friend.  And  without  going  further 
than  the  old  tried  authority  he  has  cited,  or  even  the  modern 
.  one  to  which  he  has  resorted,  I  could  show  him  laws  suf¬ 
ficient  to  account  for  calamity  in  any  country,  and  against 
which  charity  and  reason  must  ever  be  in  active  conspira¬ 
cy.  In  Bolton'’ s  justice ,  besides  indictments  for  various 
kinds  of  sorcilege  practised  upon  man  and  beast,  he  may 
find  indictments  against  men  for  not  coming  to  the  church* 
which  they  did  not  acknowledge,  and  quitting  the  worship 
of  their  fathers.  Others  against  householders  for  living 
after  the  manner  of  their  own  country,  and  not'after  the 
English  manner.f  Another  against  a  man  for  speaking  his 
own  vernacular  language,  and  not  commonly  using  to 
speak  the  English  language.!  Another  for  wearing  Irish 
apparel, §  and  many  others,  so  grotesque,  so  piteous,  and  so 
intolerable,  that  it  certainly  was  going  a  little  far  to  impute 
the  misfortunes  of  the  people  of  that  oppressed  country,  to 
the  combinations  of  journeymen.  And  I  think,  the  clients 
can  never  repay  with  sufficient  gratitude,  the  zeal  of  the 

*  I*.  .15T.  +  P.  15%.  ±  Ibid.  §  Ibid. 


134 


learned  and  honourable  counsel  that  has  carried  him  so  far 
beyond  himself.  I  think  it,  however,  a  duty  to  the  fair  and 
honest  name  of  my  friend,  to  make  his  apology ;  the  more 
so,  as  I  perceive  he  is  not  now  present  to  explain  for  him¬ 
self. 

I  have  read  of  Cato  the  censor,  to  whom  (for  the  best 
features  of  his  character,  his  simple  integrity  and  his  suc¬ 
cessful  eloquence)  I  may  compare  my  friend,  that  he  had 
two  mantles.  The  one  he  put  on  when  he  went  to  the 
forum  ;  that  was  for  splendour  and  parade.  When  he  re¬ 
tired  to  the  bosom  of  his  family,  he  slipped  that  off  and 
covered  himself  w'ith  one  more  simple,  which  I  shall  call 
his  mantle  of  peace.  Then  in  the  bosom  of  his  family,  he 
was  again  himself.  No  doubt  he  often  did  and  said  for  the 
clients  he  protected,  what  no  private  interest  could  ever 
have  urged  him  to  say  for  himself.  Such  is  the  nature  and 
office  of  an  advocate.  To  show  that  this  is  true,  I  shall 
resort  to  no  other  proof  than  his  own  words.  A  wTork 
latelv  given  to  the  public  under  the  joint  names  of  Emmet 
and  Mac  Neven ,  concludes  with  this  comparison  between 
the  respective  conditions  of  this  nation  and  that  of  his 
native  country. 

“  The  ordinary  revenue  alone  of  Ireland  amounted,  it 
“  appears,  in  the  year  ending  the  5th  of  January ,  1805, 
“  to  18,328,160  dollars  and  8  cents  ;  which  is  considerably 
“  higher  than  the  whole  income  of  the  general  govern- 
“  ment  of  America ,  in  the  same  period. 

“  The  total  receipts  of  the  treasury  of  the  United  States 
“  were  then  17,597,698  dollars  and  46  cents  ;  but  of  this 
“  sum,  no  more  was  expended  for  the  support  of  the  general 
“  government,  than  13,598,309dollars  and  47  cents  ;  theex- 

pense  of  all  the  state  governments  together  is  fully  esti- 

3 


« 


135 


u  mated  at  about  2,000,000  dollars  more.  Making  in  tlie 
“  entire,  15,598,309  dollars  and  47  cents. 

“  That  is,  a  country  enjoying  greater  general  happiness 
“  and  a  more  progressive  prosperity  than  any  other  in  the 
“  world,  whose  commercial  shipping  averages  900,000  tons, 
“  whose  flag  is  seen  on  every  sea,  whose  industry  is  as  un- 
u  bounded  as  the  globe,  whose  inhabitants  possess  liberty, 
“  peace,  and  self  government,  is  not  at  this  moment  much 
“  more  populous  than  Ireland ,  and  pays  little  more  for  those 
“  manifold  blessings  than  one  third  of  what  it  costs  the 
“  Irish  people  to  live  subject  to  ignominy,  disquietude, 
“  commercial  restraints,  and  political  slavery.  Such  are 
“  the  advantages  on  one  side  of  having  shaken  off  the 
“  British  yoke,  and  such  the  wretchedness  on  the  other  of 
u  being  under  its  control.”* 

What  the  counsel  has  said  then  in  the  warmth  of  his  ar¬ 
gument,  was  spoken  by  Cato,  the  advocate  of  his  clients  ; 
what  is  written  in  this  book,  is  written  by  Cato ,  the  good 
citizen,  the  enemy  of  oppression,  and  the  well-tried  patriot. 
Here  spake  the  advocate,  but  there  the  man  ! 

The  same  able  advocate  has  admitted,  if  I  may  use  the 
phrase,  in  commenting  upon  Hawkins, \  that  in  the  cases  of 
common  barrators,  conspirators,  &c.  the  law  has  been  over¬ 
ruled  and  again  overruled.  I  say  then  let  it  now  stand 
as  it  should  in  cases  of  conspiracy.  Let  us  abide  by  out- 
own  statutory  definition,  which  has  been  enacted  with  a 
full  retrospective  view  of  all  the  fluctuations  of  the  English 
law,  and  has  carried  it  back  to  its  original  ground,  as  de¬ 
clared  by  the  statute  of  Edward  III. 

*  Pieces  of  Irish  History,  p.  302. 

+  4  Hawk.  p.  29,  30.  2  Haiulc,  b.  2.  e.  25.  p.  15S. 


136 


>> 


Touching  the  setting  forth  the  overt  acts,  the  coun¬ 
sel  argued,  that  the  exceptions  in  cases  of  treason, 'made 
by  the  statute  to  protect  the  subject  against  the  abuse 
of  power,  are  arguments,  that,  at  common  law,  the 
overt  acts  were  not  required  to  be  set  out.  I  might 
readily  admit  all  that,  and  our  argument  be  in  no  wise 
shaken  by  it.  I  might  admit,  and,  to  be  plain,  I  do  admit, 
that  a  conspiracy  to  commit  murder  or  treason,  by  any 
means  whatsoever,  is  a  guilty  conspiracy,  because,  however 
much  the  humanity  of  the  law  will  intend  in  favour  of  in¬ 
nocence,  it  cannot  intend  that  mdn  who  combine  to  take 
away  life,  to  betray  their  country,  to  rob,  to  accuse  falsely, 
to  defraud  or  extort,  can  be  any  other  than  wicked  mali¬ 
cious  and  false  conspirators.  But  before  men  can  be  judged 
false  conspirators  for  refusing  to  work  till  they  are  re¬ 
quited,  some  overt  acts  should  be  shown  sufficiently  strong 
to  afford  the  inference  of  so  heinous  a  crime  as  conspiracy, 
which  is  punishable  with  infamy.  For  the  very  passage 
relied  on  in  Hawkins,  shows  the  conspiracy  he  treats  of 
to  be  punishable  with  pillory  and  branding.  Before 
such  criminality  shall  be  intended,  the  overt  acts  which 
constitute  that  crime  should  be  made  appear,  as  W'ell  to  the 
]ury  and  court,  who  are  to  pronounce  and  judge,  as  to  the 
parties  who  are  to  answer,  and  who  require  full  notice  in 
order  that  they  may  know  against  what  they  are  to  prepare 
their  defence.  Is  there  any  thing  more  monstrous  than  to 
call  upon  men  to  show  that  they  did  not  use  indirect  means , 
and  yet  not  tell  them  till  the  moment  of  trial,  perhaps 
till  their  accusation  is  concluded  and  they  called  upon  to 
answer,  what  those  indirect  means  were  ?  Where  shall 
men  then  find  witnesses  or  proofs  ?  Is  it  supposable  that 
the  whole  community  is  present  at  all  times  in  court  and 
ready  to  answer  for  every  body  accused?  If  the  indirect 


I 


137 

means  are  the  crime,  they  must  not  only  be  proved,  but  al¬ 
leged.  If  they  be  alleged  but  not  proved,  the  indictment 
fails  ;  and  as  they  cannot  be  proved  unless  they  are  first  al¬ 
leged,  so  it  is  a  nullity  if  they  be  not  alleged,  for  every  pro¬ 
ceeding  must  be  secundum  allegata  et  probata,  and  proof 
without  allegation,  is  no  better  than  allegation  without 
proof.  In  either  case  the  proceeding  is  a  nullity.  And 
where  no  criminal  matter  is  alleged,  the  Court  will  then 
in  justice  quash  the  indictment,  and  not  waste  its  time, 
which  is  the  time  of  the  public,  nor  oppress  the  parties, 
which  is  an  oppression  of  the  public,  by  forcing  upon  them 
the  expense  and  vexation  of  a  trial,  which  can  evidently 
have  no  other  fruit  than  oppression  and  vexation. 

Suppose,  says  the  counsel,  the  conspiracy  was  to  effect 
the  object  by  indirect  means ,  and  no  particular  means 
agreed  upon,  would  not  the  Court  intend,  that  indi¬ 
rect  means  generally  must  be  unlawful  means  ?  This  is 
answered  by  what  I  argued  in  opening,  where  I  showed  that 
indirect  is  nothing  else  in  law  phrase  than  unlawful ;  that 
is,  indirectum.  But  is  it  enough  to  put  a  man  to  an¬ 
swer  on  peril  of  fine,  imprisonment,  pillory,  branding  and 
infamy,  or  one,  or  all  of  them,  to  allege  that  he  has  used 
indirect  means ,  and  not  tell  him  what  means  he  is  accused 
of  using  ?  As  well  might  he  be  put  upon  his  trial  upon  the 
idle  formal  allegation,  that  he  was  instigated  by  the  devil, 
and  had  not  the  fear  of  God  before  his  eyes,  and  driven  to 
make  out  by  evidence  that  he  was  not  instigated  by  the 
devil,  and  that  he  had  the  fear  of  God  before  his  eyes  ! 

As  to  the  case  of  The  King  v.  Linn,  which  was  a  conspi¬ 
racy  to  prevent  the  burial  of  the  dead,  it  was  an  offence 
against  religion,  against  civilization,  against  law.  It  was 
corrupt  and  a  breach  of  the  peace.  Yet  I  do  think,  even  that 
could  hardly  be  punished,  consistently  xvith  our  statute , 

s 


./ 


138 

as  a  conspiracy,  however  the  acts  when  executed  might 
be  punished  exemplarily  in  other  forms  ;  as  riots,  affrays, 
trespasses,  breaches  of  the  peace,  &c.  all  of  which  are  in¬ 
dictable  per  se  when  executed,  but  are  not  strictly  of  that 
complexion  which  would  warrant  an  indictment  merely  for 
the  intention,  particularly  under  a  criminal  code  milder  by 
much  than  the  English.  Indeed  the  Poulterers''  case,  so 
much  relied  on,  is  conclusive  for  us  upon  that  subject ;  for 
in  the  note  at  the  conclusion  of  it,  it  particularizes  with 
great  care,  those  crimes  which  may  be  punished  as  conspi¬ 
racies,  although  nothing  be  done  further  than  the  act  of  con¬ 
spiracy.  I  shall  once  more  repeat  the  express  words. 

“  Not  a  reader.  These  confederacies  punishable  by  law, 

“  before  executed  ought  to  have  four  incidents.  1. 
u  ought  to  be  declared  by  some  manner  of  prosecution. 

“  2.  It  ought  to  be  malicious,  as  for  unjust  revenge,  &c.  - 
“  3.  It  ought  to  be  false ,  against  an  innocent.  4.  It  ought 
“  to  be  out  of  Court  voluntarily.”  Now  if  the  counsel 
who  accuses  me  of  looking  only  straight forxvard,  wrould 
follow  my  example  and  look  straight  forward  himself,  I 
think  he  would  see  before  his  eyes,  in  every  authority  he 
has  quoted,  enough  to  stop  his  course  ;  but  he  chooses  to 
turn  his  winkers  before  his  eyes,  and  will  see  only  sideways 
and  obliquely.  I  wish  he  had  given  a  direct  answer,  and 
shown  how  this  indictment  contains  those  “ four  inci¬ 
dents .” 

He  cites  a  precedent  of  a  proceeding  against  merchants, 
touching  the  rates  of  wool,  and  challenges  us  to  show  any 
statute  on  the  subject  prior  to  its  date.  I  have  answered 
him  by  laying  open  the  index  of  Keble's  Statutes ,  which 
l^ems  with  such  ordinances,  and  therefore,  his  conclusion 
that  the  conspiracy  in  that  case  was  not  by  virtue  of  a 
statute,  but  at  common  law,  falls  to  the  ground. 


V 


139 


The  learned  counsel  derives  from  Hawkins  three  grada¬ 
tions  of  enormity  in  conspiracy,  and  which,  he  argues,  are 
followed  by  corresponding  punishment. 

1st.  Where  the  charge  goes  to  the  life  ;  that  is,  where 
the  conspiracy  was  by  false  accusation  to  take  away  the 
life  of  the  victim,  which  he  says  is  followed  by  the  villanous 
judgment. 

2d.  Where  there  is  fraud  and  deceit,  there  the  pu¬ 
nishment,  if  I  understood  him,  is  of  an  infamous  nature, 
and  subject  to  branding,  pillory,  &c. 

3d.  Where  it  wants  these  ingredients,  then  the  punish¬ 
ment  is  fine  and  imprisonment. 

To  all  this  I  answer,  without  binding  myself  to  follow  a 
definition  which  contradicts  the  declaratory  statutes  at  once 
of  England ,  and  of  our  own  state,  that  the  third  class 
must  mean  those  conspiracies  or  combinations  for  wages 
which  depend  upon  statutes  that  have  not,  nor  never  had, 
force  here.  And,  therefore,  as  the  present  charge  can,  in  this 
state,  belong  to  none  of  his  three  classes,  there  is  no  need  to 
reply  to  that  classification.  If  the  masters  who  prosecute  here, 
be  themselves  indicted  for  conspiring  to  accuse ,  which  is 
strictly  an  indictable  conspiracy  ;  or  for  conspiring  to  impo¬ 
verish  the  workmen  by  preventing  their  selling  their  la¬ 
bour  ;  or  for  maintaining  each  other ,  right  or  wrong  ;  or 
simply  for  conspiring  to  monopolize  the  labour  of  the  poorer 
class ;  they  may,  perhaps,  be  punishable  by  the  law  they 
would  enforce  against  us.  But  for  the  journeymen,  they 
surely  stand  clear  of  every  similar  imputation  ;  unless  the 
Court  could  make  laws  which  none  but  the  legislature  can 
do,  and  this  enlightened  and  patriotic  tribunal  will  never 
do  what  is  beyond  its  province. 


140 


The  precedent  produced  by  Mr.  Colden ,  shows  all  it  was 
cited  for,  that  in  the  only  record  to  be  found  of  the  kind, 
no  conviction  took  place,  or  no  judgment  was  given.  I 
think,  therefore,  we  had  better  be  contented  with  the  laws 
under  which  this  country  has  so  long  enjoyed  all  its  justly 
boasted  prosperity,  unless  offences  of  this  kind  become  enor¬ 
mous.  Then  let  the  legislature  provide  for  them.  When 
the  great  merchants  engross  the  firing  of  the  city,  let  that 
also  be  provided  for,  but  let  not  industrious  shoemakers  be 
punished  through  the  fear  that  Mr.  Edgar ,  Mr.  Lenoxy 
Mr.  Grade ,  or  Mr.  Clason,  or  any  of  our  men  of  wealth, 
may  some  day  do  an  act  which  they  never  yet  have  done, 
and  which  I  venture  to  say  none  of  them  ever  will  do. 

If  the  butchers  and  bakers  combine,  the  one  not  to  kill, 
and  the  other  not  to  bake ;  the}',  and  not  the  community, 
M  ill  starve  for  that ;  for  if  we  have  a  sheep,  we  will  find 
somebody  hardhearted  enough  to  kill  it ;  and  if  we  have 
flour,  we  may  have  griddle-cakes  ;  and  if  the  evil  requires  a 
law  we  shall  have  a  legislature  to  provide  one  in  due  time. 
But  I  think  it  somewhat  too  provident  to  suppose  every  thing 
that  is  possible,  and  use  that  possibility  as  an  argument  for 
an  oppressive  and  unprecedented  accusation.  The  case  con¬ 
cerning  Macklin ,  the  player,  was  also  quoted  from  the 
Crown  Circuit  Assistant ,  as  an  indictable  offence  not 
created  by  statute,  and  yet  not  tinctured  with  the  cri¬ 
men  falsi.  It  was,  however,  a  conspiracy  to  breed  a 
riot  in  Covent  Garden  Theatre ,  in  order  to  force  a  merito¬ 
rious  actor  and  servant  of  the  public  off  the  stage,  to  de¬ 
prive  him,  by  such  wicked  conspiracy,  of  his  bread,  and 
was  in  the  nature  of  that  branch  called  maintenance ,  being 
a  conspiracy  amongst  a  number  to  maintain  each  other  in  a 
quarrel,  and  in  what  they  all  knew  to  be  wrong.  It 


141 


was  malicious  and  oppressive,  and  not  for  any  concern  of 
their  own ,  nor  in  furtherance  of  any  just  interest  or  claim 
by  any  legal  ?neans ,  and  if  it  was  not  strictly  a  conspiracy 
at  common  law,  it  was  as  like  it,  as  it  is  unlike  to  our  case. 

But  once  for  all,  I  refer  again  to  the  statute  of  New-Tork , 
and  intrench  myself  within  it,  and  also  to  the  evidence  which 
negative  usage  furnishes,  that  this  combination  not  to  work, 
which  is  a  mere  non-feasance ,  and  omission  of  what  no  law 
obliged  us  to  do,  is  not  indictable  within  this  state  at  com- 
monlaw.  That  it  is  noth)'- statute  it  is  admitted  ;  and  other' 
"syise  than  by  statute  or  at  common  law,  it  cannot  be. 


ccctccc 


The  reporter  and  publisher  join  in  expressing  their 
regret,  that  they  have  not  been  able  to  give  the  able  reply 
of  Mr,  Golden .  It  was  submitted  to  him  for  his  revisal, 
but  during  the  great  pressure  of  his  business  he  mislaid  it. 
The  reporter  after  transcribing  his  notes  had  destroyed 
them,  and  the  loss  became  irreparable. 

The  Court,  when  the  argument  was  closed,  conceived 
the  cause  of  such  importance  as  to  require  mature  consider¬ 
ation,  and  after  paying  a  handsome  compliment  to  the  in¬ 
dustry  and  ability  of  the  counsel  on  both  sides,  deferred  its 
opinion  till  the  ensuing  session. 

On  the  next  general  sessions  held  in  the  month  of  Februa¬ 
ry ,  the  Honourable  Dewitt  Clinton ,  Mayor,  being  absent, 
the  Aldermen  who  heard  the  motion  not  agreeing  in 


142 


opinion,  no  judgment  was  given,  and  the  defendants’  re¬ 
cognisances  to  appear,  &c.  were  continued  over. 

At  the  general  sessions  in  the  month  of  April,  the 
Mayor  went  out  of  office,  and  was  succeeded  by  the 
Honourable  Jacob  Radclijf ;  the  latter  not  having  heard 
the  argument,  declared  himself  incompetent  to  deliver  an 
opinion,  and  the  extensive  calendar  and  the  pressing  neces¬ 
sity  for  delivering  the  city  prison,  made  it  impossible  to 
allow  time  for  a  fresh  argument. 

The  same  difficulties  occurred  in  the  June  sessions,  and 
it  was  thought  expedient  to  appoint  a  special  sessions  on 
the  12th  July,  for  the  final  determination  of  the  cause. 


TRIAL,  &c. 


ON  Thursday ,  the  twelfth  day  of  July,  this  cause  came 
before  the  special  sessions  appointed  by  order  of  the  cor¬ 
poration  of  the  city  and  county  of  New  York,  for  its  de¬ 
termination.  Mr.  Colden  appeared,  together  with  Mr. 
.Sampson,  as  counsel  for  the  defendants.  Having  argued 
the  motion  on  their  behalf  before  his  appointment  to  the 
office  of  District- Attorney,  Mr.  C.  did  not  think  himself  at, 
liberty  to  act  on  their  prosecution.  Mr.  Griffin  was  ap¬ 
pointed  in  his  place  to  prosecute,  and  Mr.  Emmet  was, 
as  before,  associate  counsel  on  the  part  of  the  people. 

The  defendants’  counsel  finding  that  no  judgment  could, 
be  given  on  their  former  arguments,  declined  to  renew  the 
motion  for  quashing  the  indictment.  It  had  been  proposed 
to  submit  the  foregoing  printed  report  of  the  motion,  and 
the  arguments  upon  it,  after  the  manner,  sometimes  adopt¬ 
ed  by  our  Courts  under  a  press  of  business,  of  receiving 
written  arguments  ;  but  the  delays  of  the  press,  the  whole 
not  be.ing  yet  printed,  and  the  consideration  that  one  of  the 
counsel  (Mr.  Griffin)  had  not  been  heard,  and  other  rea¬ 
sons  to  the  contrary  presenting  themselves,  that  mode  was 
not  adopted,  and  the  motion  being  now  waived,  the  de- 


144 


iendants  who  were  under  recognisances,  appeared  by  their 
counsel,  and  pleaded  not  guilty. 

On  motion  of  Mr.  Griffin ,  the  following  witnesses  were 
bound  in  recognisance  to  appear  from  dav  to  day  and  testi¬ 
fy  in  the  cause.  Lewis  Judson ,  Lucius  Benjamin ,  Edward 
Whitess ,  Oliver  H.  Taylor,  John  Wilcox,  Charles  Aimes , 
Daniel  Corwin,  Benjamin  Britain ,  Thomas  AFCready, 
Webby  Slocum ,  William  Frowd. 

The  jury  precept  contained  twenty-four  names  of  jurors, 
of  whom  only  eighteen  were  summoned,  the  remainder 
being  absent  or  not  found.  And  of  these  there  did  not 
appear  a  sufficient  number. 


The  following  were  the  Jurors  sworn. 


David  WagstafF, 

John  Johnson, 

James  Welsh, 

William  L.  Lawrence, 
Augustus  Nicoll, 

John  Ashfield, 

David  Cargill, 


1 


Who  were  on  the 
panel. 


John  W.  Livingston,  "J 
William  Brodill, 

Joseph  Dederer,  }»'  Tales. 

John  Queen, 

Robert  Graham, 

As  the  jurors  came  to  the  book,  they  were  asked  by  the 
defendants’  counsel,  whether  they  were  master  shoemakers, 
and  also,  whether  they  were  masters  or  employers  in  any 
of  the  mechanic  arts  or  trades  ;  but  none  such  appearing 


145 


they  were  all  permitted  to  be  sworn  without  further  objec¬ 
tion. 

A  question  was  put  to  a  juror  by  Mr.  Griffin ,  on  be¬ 
half  of  the  prosecution,  whether  he  had  not  made  up  his 
mind  upon  the  subject  of  this  trial.  He  said  he  had  no 
knowledge  of  the  particulars  of  this  case  and  therefore  could 
not  have  made  up  his  mind.  Upon  this  Mr.  John  John¬ 
son,  another  of  the  jurors,  observed,  that  he  had  so  far  made 
up  his  mind,  that  he  could  see  no  reason  why  journeymen 
should  not  meet  to  regulate  their  own  demands,  as  well  as 
other  men.  This  declaration  was  made  a  ground  of  chal¬ 
lenge  for  favour,  by  the  prosecutors’  counsel,  and  the  three 
jurors  first  sworn,  viz.  James  Welsh ,  John  Ashfield ,  and 
David  Cargil,  were  sworn,  to  try  whether  the  said  John 
Johnson  was  an  indifferent  juror  between  the  parties  or 
not. 

David  Codzvise,  Esq.  counsellor  at  law,  having  been 
seated  opposite  the  jury  box,  was  called  and  sworn  to  testi¬ 
fy  to  the  words  of  Mr.  Johnson.  The  prosecutors  how¬ 
ever  withdrew  the  challenge  and  the  juror  was  sworn. 

Mr.  §>ueen  was  also  challenged,  for  favour,  and  examined 
on  his  voire  dire.  The  ground  of  challenge  to  Mr.  ^ ueen 
was,  that  his  brother,  who  was  now  absent  from  this  city, 
had  been,  during  his  residence  here,  about  six  months  ago 
a  member  of  the  Society  of  Journeymen  Cordwainers,  and 
that  he  might  still  be  understood  to  be  a  member ;  if  so, 
the  penalties  would  fall  upon  him,  provided  the  acts  of  that 
body,  were  held  to  amount  to  a  conspiracy,  and  for  that 
reason,  his  brother  could  not  be  an  impartial  juror.  The 
same  triors  were  sworn.  Mr.  §>iieen  was  examined  on 
his  voire  dire.  Two  witnesses,  Thomas  Wilson  and  George 
Gould,  were  examined  in  chief.  The  counsel  summed  up 

T 


146 


the  evidence,  and  the  triors  found  Mr.  Queen  an  indifferent 
juror  between  the  parties  he  ;  was  accordingly  sworn. 

The  court  imposed  fines  on  several  persons  summoned 
as  jurors,  for  their  non-attendance,  and  adjourned  the  trial 
of  the  indictment  till  10  o’clock  on'tlie  following  day. 

The  jury  sworn  were  permitted  to  go  at  large  by  consent 
of  the  parties ;  the  court  first  admonishing  them  of  their 
duties,  and  of  the  necessity  of  shutting  their  ears  to  all 
conversations  touching  the  subject  they  were  sworn  to  de¬ 
termine  upon. 


Friday ,  13th  July,  1810. 

Present , 

The  Hon.  Jacob  Radcliff,  Esq.  Mayor , 

The  Hon.  J.  O.  Hoffman,  Esq.  Recorder,  ^Justices. 

Nicholas  Fish,  Esq.  Alderman. 

On  the  part  of  the  prosecution,  the  counsel  proceeded  to 
prove  the  rules  of  the  society  by  parol,  having  previously 
given  notice  to  the  defendants’  counsel,  to  produce  all  books 
and  papers  of  the  society,  and  having  proved  the  same  to 
have  been  in  the  hands  of  Baker ,  one  of  the  defendants, 
who  was  secretary  of  the  society.  The  first  witness,  Ben¬ 
jamin ,  proved  the  rules  as  contained  in  their  constitution 
printed  in  1805,  and  afterwards  re-enacted.  He  also  testi¬ 
fied  to  some  additional  by-laws  or  amendments.  He  could 
not  say  that  the  printed  constitution  now  produced  was  a 
copy  of  the  former,  and  the  defendants’  counsel  at  first  ob¬ 
jected  to  its  being  given  in  evidence,  as  such  ;  but  in  the 
course  of  the  examination  thought  proper  to  admit  it,  and 
it  was  read  as  follows. 


147 


CONSTITUTION,  &c. 


WE,  the  Journeymen  Cordwainers  of  the  City  of  New- 
York,  impressed  with  a  sense  of  our  just  rights,  and  to 
guard  against  the  intrigues  or  artifices  that  may  at  any 
time  be  used  by  our  employers  to  reduce  our  wages  lower 
than  what  we  deem  an  adequate  reward  for  our  labour, 
have  unanimously  agreed  to  the  following  articles  as  the 
Constitution  of  our  Society. 

ARTICLE  I. 

That  this  Society  shall  consist  of  a  President,  Secretary, 
and  three  Trustees,  to  be  elected  annually ;  and  a  Commit¬ 
tee  of  six  members,  to  be  chosen  every  six  months. 

ARTICLE  II. 

The  election  for  President,  Secretary  and  Trustees,  shall 
take  place  on  the  third  Monday  in  January,  annually,  at 
the  usual  place  of  meeting,  and  they  shall  be  respectively 
chosen  by  ballot,  by  a  plurality  of  votes  of  the  members 
present;  and  the  Committee  shall  be  chosen  the  third 
Monday  in  January,  and  the  third  Monday  in  July. 

ARTICLE  III. 

The  President,  in  order  to  preserve  regularity  and  de¬ 
corum,  is  authorized  to  fine  any  member  six  cents,  that  is 
not  silent,  when  order  is  called  for  by  him,  and  all  members 
are  to  address  the  chair,  one  at  a  time. 

ARTICLE  IV. 

Any  person  becoming  a  member  of  this  Society,  shall 
pay  the  sum  of  forty-three  and  a  half  cents  on  his  admis¬ 
sion,  and  six  and  a  quarter  cents  as  his  monthly  contribu- 


tion  i  and  should  any  member,  leave  the  city  at  any  time* 
and  stay  for  the  space  of  three  months  or  upwards,  if  on 
his  return  it  can  be  proved  that  he  has  been  so  absent,  he 
shall  still  be  deemed  a  lawful  member,  by  paying  one 
month’s  contribution. 

ARTICLE  V. 

AH  the  money  collected  in  this  Society  shall  be  delivered 
into  the  hands  of  the  Trustees,  and  they  shall  hold  an  equal 
share  tiU  it  amounts  to  fifty  dollars ;  they  shall  then  deposit 
it  in  the  United  States  Bank,  and  it  shall  not  be  drawn  on 
except  in  case  of  a  stand  out,  and  then  left  to  a  majority  of 
the  society. 

ARTICLE  VI. 

The  secretary  shall  keep  a  regular  account  of  all  the  pro¬ 
ceedings  of  this  Society,  and  he  for  his  services,  shall  re* 
ceive  one  dollar  per  month,  and  twelve  and  a  half  cents  for 
each  notice  served  on  any  member. 

ARTICLE  VII. 

The  President,  Secretary  and  Committee,  shall  meet  on 
the  second  Monday  in  each  month,  to  consult  and  propose 
any  measures  they  may  think  beneficial  for  the  Society, 
who  shall  assemble  on  the  third  Monday  in  each  month,  at 
the  hour  of  seven  o’clock  from  September  to  March  inclu¬ 
sive,  and  at  the  hour  of  eight  o’clock  from  March  to  Sep¬ 
tember,  and  for  non-attendance  of  President  and  Secretary, 
to  pay  a  fine  of  fifty  cents,  and  any  member  of  the  Commit 
tee  to  pay  a  fine  of  twenty-five  cents. 

ARTICLE  VIII. 

No  member  of  this  society  shall  work  for  an  employer, 
that  has  any  Journeyman  Cordwainer,  or  his  apprentice  in 
his  employment,  that  do  not  belong  to  this  Society,  unless 
the  Journeyman  come  and  join  the  same:  and  should  anv 


149 


member  work  on  the  seat  with  any  person  or  persons  that 
has  not  joined  this  society,  and  do  not  report  the  same  to 
the  President,  the  first  meeting  night  after  it  comes  to  his 
knowledge,  shall  pay  a  fine  of  one  dollar. 

ARTICLE  IX. 

If  any  employer  should  reduce  his  Journeyman’s  wages 
at  any  time,  or  should  the  said  Journeyman  find  himself 
otherwise  aggrieved,  by  reporting  the  same  to  the  Com¬ 
mittee  at  their  next  meeting,  they  shall  lay  the  case  before 
the  society,  vrho  shall  determine  on  what  measures  to  take 
to  redress  the  same. 

ARTICLE  X. 

The  name  of  each  member  shall  be  regularly  called  over 
at  every  monthly  meeting,  and  should  any  member  be  ab¬ 
sent  when  his  name  has  been  called  over  three  times  suc¬ 
cessively,  shall  pay  a  fine  of  twelve  and  a  half  cents  for  the 
first  night,  twenty-five  cents  for  the  second,  and  fifty  cents 
for  the  third  ;  and  if  absent  three  successive  meeting  nights, 
the  Secretary  shall  deliver  him  a  notice,  and  if  he  does  not 
make  his  appearance  after  being  notified,  on  the  following 
meeting  night,  (unless. he  can  assign  some  just  cause  for 
staying  away,)  shall  pay  a  fine  of  three  dollars, 

ARTICLE  XI. 

Any  Journeyman  Cordwainer,  coming  into  this  city,  that 
does  not  come  forward  and  join  this  society  in  the  space 
of  one  month,  (as  soon  as  it  is  known,)  he  shall  be  notified 
by  the  Secretary,  and  for  such  notification  he  shall  pay 
twelve  and  a  half  cents  ;  and  if  he  does  not  come  forward 
and  join  the  same  on  the  second  meeting  of  the  society,  af¬ 
ter  receiving  the  notice,  shall  pay  a  fine  of  three  dollars, 
ARTICLE  XII. 

Any  member  of  this  society  having  an  apprentice  or  ap¬ 
prentices,  shall,  when  he  or  they  become  free,  report  the 


150 


same  to  the  President,  on  the  first  monthly  meeting  follow¬ 
ing;  and  if  the  said  apprentice  or  apprentices  do  not  come 
forward  and  join  the  Society  in  the  space  of  one  month  from 
the  time  of  the  report,  shall  be  notified  by  the  Secretary, 
and  if  he  does  not  come  forward  within  two  months  after 
receiving  the  notification,  shall  pay  a  fine  of  three  dollars. 

ARTICLE  XIII. 

There  shall  be  delivered  to  the  President  at  every  month¬ 
ly  meeting,  a  sufficient  sum  of  money  to  defray  the  neces¬ 
sary  expenses  of  this  society. 

ARTICLE  XIV. 

If  any  member  should  be  guilty  of  giving  a  brother 
member  any  abusive  language  in  the  society-room,  during 
the  hours  of  meeting,  who  might  have  been  excluded  from 
this  society  by  his  misdemeanor,  but  by  making  concession 
have  been  reunited,  he  shall  pay  a  fine  of  twenty-five  cents. 

ARTICLE  XV. 

Every  member  of  the  society  shall  inform  the  Secretary 
of  his  place  of  residence,  and  should  they  at  any  time 
change  their  place  of  residence,  they  shall  notify  the  same 
to  the  Secretary  on  the  first  monthly  meeting  following  ; 
not  complying  with  this,  shall  pay  a  fine  of  twenty-five 
cents. 

ARTICLE  XVI. 

Any  member  may  propose  as  amendments  to  this  const; 
tution,  new  articles,  or  alterations  of  those  in  force,  which 
proposed  amendments  must  be  delivered  to  the  Committee 
in  writing,  who  shall  present  the  same  to  the  Society,  at 
their  next  monthly  meeting,  and  if  two-thirds  of  the  mem¬ 
bers  present  concur  therein,  such  amendment  shall  become 
a  part  of  the  constitution. 

4. 


151 


ARTICLE  XVII. 

It  is  the  .duty  of  the  private  members  to  attend  the  meet¬ 
ings  and  cooperate  with  its  officers  in  promoting  the  wel¬ 
fare  of  the  society,  for  in  doing  this,  they  will  recollect 
they  are  promoting  their  own  individual  welfare. 

A  LIST  OF  WAGES 


FOR  THE  JOURNEYMEN  CORD  WHINERS 


IN  THE  CITY  OF  NEW-YORK, 

Agreed  to  on  the  First  Day  of  March,  1805. 

Back  Strap  Boots,  fair  tops  - 
Back  Strapping  the  top  of  do. 

Ornament  Straps  closed  outside  on  do. 

Back  Strap  Bootees,  ... 

Wax  Legs  closed  outside,  plain  counters,  fair  tops, 
Cordovan  Boots,  fair  tops,  - 

Cordovan  Bootees,  - 

Suwarrow  Boots,  closed  outside, 

Do.  inside  closed,  bespoke,  - 

Do.  do.  inferior  work,  do. 

Binding  Boots,  - 

Stabbing  do.  -- 

Footing  Old  Boots,  - 

Foxing  New  Boots,  -  -  -  -  , 

Foxing  and  Countering  Old  Boots, 

Do.  without  Counters,  - 

Shoes,  best  work,  - 

Do.  inferior  work,  -  -  .  „ 

Pumps,  French  edges,  .... 

Do.  Shouldered  do.  - 

Golo  Shoes,  - 

Stitching  Rans,  - 

Cork  Soles,  - 


JDols.  CfS. 
4  00 

-  0  75 
0  25 
3  50 
3  25 
3  00 

2  50 

3  00 
2  75 
2  50 
0  25 

-  0  25 
2  00 
0  50 
2  00 

•  1  75 

1  12 
1  00 
1  12 
1  00 
1  50 
■  0  75 

0  50 


15z 


it  was  further  proved,  and  not  denied  by  the  defendants, 
that  on  several  occasions  measures  had  been  taken  to  give 
effect  to  their  constitution,  or  rules,  by  giving  notices  to 
masters  having  journeymen  or  apprentices  in  their  employ, 
not  members  of  the  body  ;  viz.  for  having  more  than  two  ap¬ 
prentices,  or  employing  apprentices  other  than  those  of  the 
members  of  the  society;  also,  for  employing  journeymen 
who  had  infringed  their  rules.  The  notice  in  such  cases 
was,  that  if  they  persisted  to  employ  such  persons,  &c.  or  to 
disregard  the  rules  of  the  body,  their  shop  should  be  desert¬ 
ed  by  all  the  workmen  of  the  society.  This  had  been  in 
some  instances  effected  by  means  of  what  they  called  a 
strike  against  the  shop ,  and  the  offending  member  was  then 
termed  a  scab ,  and  wherever  he  was  employed  no  others  of 
the  society  were  allowed  to  work.  There  was  a  strike 
against  the  shop  of  Corwin  Aimes ,  but  as  it  appeared  to 
the  society  that  they  contrived  to  defeat  its  operation  by 
privately  getting  their  work  done  at  other  shops,  the  society, 
in  November,  1809,  ordered  a.  general  strike  against  the  mas¬ 
ters.  There  were  one  hundred  and  eighty-six  members, 
and  about  as  many  journeymen  who  were  not  members,  but 
all  the  best  workmen  were  of  the  society.  Benjamin  who 
testified  as  to  this  general  strike,  said  he  never  knew  of  but 
one  general  turn  out.  He  testified  that  he  had  been  fined 
and  threatened  for  working  against  the  rules  of  the  society, 
He  admitted  on  his  cross-examination,  that  he  came  volun¬ 
tarily  into  the  society,  and  also,  that  on  the  question  for  a 
p-eneval  turn  out,  the  members  voted  by  secret  ballot,  and 
that  no  compulsion  is  used,  but  every  man  votes  according 
to  his  inclination,  the  majority  carries  it,  and  then  it  be¬ 
comes  a  law,  and  the  contraveners  of  it  are  scabbed.  Ed¬ 
ward  Whitess  had  worked  for  Convin  Aimes ,  about  four 


153 


or  five  years,  and  had  joined  the  society  about  six  or  seven 
years  ago.  He  was  fined  at  different  times,  and  at  the 
time  of  the  general  meeting  there  was  a  rumpus  in  the  so¬ 
ciety,  which,  with  the  multiplicity  of  the  fines,  determined 
him  to  leave  it,  and  change  his  occupation,  and  take  to 
cramping  bootlegs.  He  had,  while  a  member,  acted  as  sex¬ 
ton  of  a  church,  for  which  he  had  sixty  dollars  yearly. 
This  prevented  his  attendance  and  occasioned  him  some¬ 
times  to  be  fined.  During  the  time  he  was  first  scabbed, 
his  employer  was  obliged  to  discharge  him  until  he  paid  his 
fine  and  was  reinstated.  He  admitted  that  he  came  volun¬ 
tarily  into  the  society,  and  remained  in  it  six  or  seven  years. 

Mr.  Aimes  proved  that  he  had  received  several  notices, 
one  to  discharge  Whitess ,  which  he  complied  with  ;  another 
to  discharge  a  boy,  an  apprentice  of  Britton ,  who  had 
worked  with  him  two  or  three  years.  Witness  thought  it  a 
great  hardship  that  the  old  man  should  lose  the  profit  of  the 
work  of  the  apprentice  he  had  instructed  and  did  not  dis¬ 
charge  him,  for  which  the  body  struck  against  him.  On 
eross-examination  he  admitted  he  had  contributed  some 
money  towards  carrying  on  this  prosecution. 

James  Britton  confirmed  this  testimony,  and  said, 
that  after  he  had  instructed  his  apprentice,  whose  work 
was  his  chief  support,  (he  himself  being  in  years,)  he  was  de¬ 
prived  of  that  help  by  the  influence  of  the  body  of  which 
he  was  not  a  member. 

Thomas  Lewis  was  also  examined ;  his  evidence  was 
not  very  material,  being  only  confirmatory  of  the  above 
particulars. 

The  defendants  offered  to  show,  as  well  from  the  wit¬ 
nesses  on  the  part  of  the  prosecution,  as  from  other  wit¬ 
nesses  whom  they  should  call, 

v 


154 


1st.  That  long  ago,  prior  to  the  strike  or  turn  out,  there 
was  a  combination  of  the  masters  for  the  express  purpose 
of  lowering  the  wages  of  the  working  men,  and  which  was 
oppressive  to  them  ;  and  that  their  society  originated  in 
the  necessity  of  protecting  themselves  against  such  combi¬ 
nations  ;  and  further,  that  the  masters  were  now  in  com¬ 
bination  for  the  purpose  of  this  prosecution. 

This  was  objected  to  and  overruled,  upon  the  ground 
that  the  misconduct  of  the  masters  would  be  no  justifica¬ 
tion  of  die  defendants.  It  was  then  offered  as  evidence  in 
mitigation,  but  the  Court  said,  that  if  there  were  circum¬ 
stances  merely  in  mitigation  of  the  sentence,  they  would 
come  more  properly  in  affidavit  in  case  of  conviction. 

2d.  The  defendants  attempted  to  show,  that  the  wages 
and  rates  contended  for,  and  demanded  by,  the  journey  men, 
were  reasonable,  and  no  higher  than  to  afford  them  a  bare, 
maintenance. 

This  evidence  was  not  received,  because  none  had  ap¬ 
peared  on  the  part  of  the  prosecution,  to  show  that  unrea¬ 
sonable  or  extravagant  demands  had  been  made.  It  was 
therefore  held  irrelevant  to  rebut  what  had  not  been  proved. 

3d.  The  defendants  proposed  to  prove,  that  the  masters 
made  an  excessive  profit  on  the  labour  of  the  workmen,  but 
that  was  refused  also,  upon  the  former  ground,  that  the  mis¬ 
conduct  of  the  masters  would  not  justify  a  conspiracy  or 
illegal  combination  in  the  journeymen. 

Various  discussions  arose  touching  the  admissibility  and 
relevancy  of  evidence,  how  far  the  acts  of  one  person  should 
preclude  others  ;  how  far,  though  the  day  laid  in  the  in¬ 
dictment  was  not  material,  the  prosecutor  should  still  be 
confined  to  one  single  conspiracy  under  each  count,  and 


155 


having  once  fixed  the  period,  be  held  to  it,  and  prevented 
from  wandering  in  evidence,  so  as  to  surprise  and  bsfRe  the 
defence  :  the  more  so,  as  the  conspiracy  was  here  laid, 
not  on  divers  days  and  times ,  but  on  a  certain  day.  Some 
discussions  also  took  place,  touching  the  proof;  how  far  the 
conspiracy  should  be  first  proved,  before  particular  acts 
against  individuals  ;  and  such  other  topics,  as  arise  in 
every  trial  for  conspiracy,  from  the  complex  and  indefinite 
nature  of  the  charge.  All  such  points  being  of  general  appli¬ 
cation  and  not  materially  interwoven  with  the  object  of  this 
report,  are  purposely  omitted.  They,  however,  necessarily 
consumed  much  time,  and  the  evidence  was  not  closed  till 
eight  or  nine  o’clock. 

The  Court  having,  in  the  morning,  intimated,  that  it 
would  sit  till  twelve  o’clock,  rather  than  adjourn,  defend¬ 
ants’  counsel  were  called  upon  to  sum  up,  and  Mr.  Samp¬ 
son ,  pursuant  to  arrangement  with  Mr.  Colden,  commenced. 
He  observed,  that  the  difficulties  under  which  he  laboured, 
were  beyond  his  force,  and  that  he  was  conscious  enter¬ 
ing  upon  an  argument  of  such  a  nature,  under  such  disad¬ 
vantages,  was  a  forlorn  endeavour.  The  evidence  given, 
did  not  in  any  shape  alter  the  principles  upon  which  he  had 
argued  six  months  ago,  for  the  quashing  of  the  indictment. 
That  argument  was  addressed  to  a  court  of  law,  and  found¬ 
ed  upon  the  law,  supposing  all  the  facts  charged  in  the  in¬ 
dictment  to  be  proved.  Nothing,  certainly,  had  come  out 
in  evidence,  to  prejudice  the  defendants,  for  there  was  not 
a  single  instance  of  violence  or  disorderly  conduct,  and  it 
was  conceded,  that  the  demands  of  the  workmen  were  not 
unreasonable  or  extraordinary.  The  single  question  would 
be,  as  it  was  considered  by  him,  whether  the  law  of  En¬ 
gland  was  to  govern  this  case.  He  was  aware  how  far 


156 


the  doctrines  of  the  English  law  upon  this  head,  had  unfor¬ 
tunately  given  a  bias  to  the  judgment  of  many  individuals; 
and  no  doubt,  some  of  those  whom  chance  had  arrayed  to 
sit  in  judgment  on  this  cause,  must  be  presumed,  however 
honourable  and  intelligent,  to  have  imbibed  more  or  less  of 
that  opinion.  The  jury,  it  is  true,  are  judges  of  law  and 
fact  in  criminal  cases,  and  the  arguments  necessary  to  dis¬ 
entangle  the  question  from  such  preconceived  notions,  must 
be  of  a  nature  too  prolix  and  arduous,  to  be  offered  with 
a  fair  prospect  of  success,  to  a  jury  already  exhausted  and 
fatigued  by  a  painful  sitting,  at  a  season  when  the  powers 
of  mind  and  body  languish.  Mr.  S.  further  observed,  that 
in  the  former  argument,  he  had  found  it  necessary  to  turn 
over  many  volumes  in  order  to  show  grounds  for  his 
opinions,  and  to  cite  numerous  cases  which  it  would  be  im¬ 
possible  now,  at  candle  light,  with  sight  so  fatigued,  and 
faculties  so  exhausted,  and  in  a  state  of  healdr  so  ill  suited 
to  exertion,  to  resort  to.  The  very  circumstance  of  his 
having  undertaken  to  report  the  former  arguments,  with 
all  the  tiresome  labour  of  transcribing,  compiling  and  cor¬ 
recting  of  the  press,  had  effaced  the  livelier  impressions  of 
first  conceptions,  and  must  impart  to  what  he  should  offer 
the  vapid  insipidity  of  a  tale  twice  told.  The  many  books 
already  referred  to,  and  now  produced  by  the  opposite  coun¬ 
sel,  seemed  to  forewarn  him  that  they  meant  to  renew  the 
learned  efforts  of  the  former  contest,  and  many  of  them  re¬ 
ferred  to  by  Mr.  Griffin,  were  not  noticed  till  the  moment 
it  was  necessary  for  him  to  reply  to  them,  when  it. 
was  impossible  for  him  to  answer  but  from  vague  recollec¬ 
tion  or  repetition  of  his  former  argument,  or  reference 
to  the  printed  report.  [Mr.  S.  in  referring  to  his  former 
argument,  read  the  authorities  from  the  printed  report, 
but  omitted  much  the  greater  part,  from  unwillingness  to 
4 


fatigue  the  attention  of  the  jury  already  exhausted.  After 
he  had  concluded,  it  was 'thought  too  late  to  hear  the  other 
counsel,  and  the  court  udjourned  till  the  following  day 
at  ten  o’clock.] 


Saturday ,  July  14th. 


Mr.  Golden  this  day  followed  Mr.  Sampson ,  and  re-ex- 
amined  the  principles  of  the  law,  and  the  leading  authori¬ 
ties  ;  reasoning  upon  them,  and  applying  them  to  the  case 
with  great  discrimination  and  ability.  Admitting  all  the 
cases  cited  against  the  defendants  from  the  English  books 
to  be  of  full  authority,  that  none  of  them  would  warrant  a 
conviction.  It  seemed  to  him,  that  the  moment  it  was  ad¬ 
mitted  that  the  object  of  the  conspiracy  was  not  criminal, 
there  ought  to  be  an  end  of  the  prosecution.  And  the  doc¬ 
trine  and  argument  touching  a  conspiracy,  to  do  a  lawful  act 
by  unlawful  means,  seemed  to  him  a  distinction  without  a 
difference,  an  unnecessary  refinement,  and  at  best  a  begging 
of  the  question.  To  conspire  to  use  unlawful  means,  was 
to  conspire  to  do  an  unlawful  thing,  and  was  an  unlaw¬ 
ful  conspiracy.  All  that  he  admitted  freely.  But  when 
that  was  admitted,  the  question,  whether  there  had  been 
such  a  conspiracy,  was  not  a  whit  advanced,  and  he  contend¬ 
ed  as  confidently  as  before,  that  there  had  not.  He  read 
and  commented  upon  the  constitution  of  the  society,  and 
maintained  that  all  the  words  of  coercion  with  which  it 
abounded,  all  the  terms  of  arbitrary  command,  which 
might  furnish  such  fertile  subjects  for  declamation,  were 


158 


innocent  and  harmless,  and  would  be  so  considered  by  an) 
candid  judgment,  when  the  undeniable  truth  was  taken 
into  the  account,  that  the  only  compulsion  they  used 
was  a  refusal  to  work  with  those  whom  they  considered  as 
joining  in  oppression  against  them.  There  was  a  well  re¬ 
ceived  and  settled  definition  of  crimes,  by  which  they  were 
divided  into  two  comprehensive  classes  those  called  mala  in 
se,  which  were  crimes  against  the  universal  laws  of  God 
and  nature,  and  those  termed  mala  prohibita ,  or  offences 
against  positive  institutions.  There  must  in  this  country  be 
statutes  enacted  by  the  legislature,  which  speaks  the  will 
and  voice  of  the  people.  Beyond  this  definition  there  can 
be  no  crime,  and  it  is  impossible  to  draw  the  refusal  of 
a  body  of  men  to  labour  under  terms  disadvantageous  to 
themselves,  or  which  they  think  disadvantageous  to  them, 
under  either  branch  of  this  definition,  without  more  subtlety 
than  ought  to  be  admitted  in  the  law  ;  and  more  straining 
than  the  genius  of  our  code  allows  to  be  used  against  de¬ 
fendants  in  anv  criminal  case. 

* 

Mr.  Griffin  first  summed  up  on  the  part  of  the  prosecu¬ 
tion.  The  law  having  been  already  so  fully  discussed,  and 
the  necessary  limits  of  this  report  rendering  it  necessary  t© 
compress  the  account  of  the  trial,  on  which  the  facts  were 
few,  and  of  no  great  interest  or  novelty,  nothing  more  can 
be  given  than  the  outlines  of  the  summing  up. 

To  the  authorities  cited  by  the  counsel  for  the  prosecu¬ 
tion  on  the  former  argument,  Mr.  Griffin  added  the  follow¬ 
ing  :  Rex  v.  Pispal ,  3  Burr.  1320.  the  remarks  of  Lord 
Mansfield  and  Justice  Tates ,  on  the  subject  of  conspiracies, 
in  Fertile  v.  Lord  Clive,  4  Burr.  2475,  2476.  the  obser¬ 
vations  of  Justice  Grose  on  the  same  subject,  in  Rex  v. 
Maxvbeij  et  a!.  6  D.  E.  636.  and  the  cases  of  Rex  v. 


159 


Hammond  et  al.  2  E.sp.  Rep .  719.  Rex  v.  Locker  et  al,  5 
Esp.  Rep.  107.  Rex  v.  Salter  et  al.  5  Esp.  Rep.  125. 

Mr.  Griffin  applied  himself  very  forcibly  in  answer  to 
the  observations  of  Mr.  Sampson ,  upon  the  common  law, 
and  instead  of  judging  it  by  the  sharp  rules  of  criticism, 
desired  that  it  might  be  fairly  and  candidly  judged  by  its 
effects.  He  drew  a  comparative  view  of  the  condition  of 
the  English  people,  and  the  English  peasantry,  with  that  of 
the  people  of  the  continent  of  Europe  ;  of  the  independence 
of  the  one,  and  the  debased  and  servile  condition  of  the 
other.  Admitting  that  the  national  code  was  the  source 
of  national  improvement,  manners,  and  civilization,  as  was 
argued  by  Mr.  Sampson ,  what  better  eul  >gium  could  be 
passed  upon  the  common  law  of  England ,  than  the  flou¬ 
rishing  and  happy  situation  of  the  nation  where  that  code 
prevailed.  If  the,  people  of  England  with  all  their  griev¬ 
ances  are  so  much  above  the  servile  state  of  boors,  or  the 
debased  and  benighted  condition  of  those  of  Spain  and 
Portugal ,  and  other  countries  where  the  sword  and  the  in¬ 
quisition  govern  without  control  of  law,  it  must  be,  even 
from  the  argument  of  his  opponent,  that  the  national  code 
is  more  exalted  and  more  beneficial. 

Why  is  it,  added  he,  that  “  slaves  cannot  breathe  in  En- 
“  gland?”  Why  is  it,  that  “  they  touch  that  country  and 
u  their  shackles  fall  ?”  It  is  the  common  law  which  strikes 
off  their  fetters,  it  is  the  common  law  which  expands  them 
into  freemen. 

If  England  in  the  times  of  general  disorder  throughout 
Europe ,  escaped  almost  singly  from  the  devastations  of 
civil  war,  revolution  and  invasion,  it  was  owing  to  the  love 
of  the  laws  that  animated  the  people  to  contend  heart  and 
hand,  for  their  precious  birthright,  and.to  the  genius  of  their 


) 


160 

constitution  that  watched  over  their  destiny.  What  else 
had  protected  the  English  people  from  guillotine,  bastile  and 
inquisition  ?  What  else  had  implanted  in  the  United  States 
the  principles  of  freedom  which  had  grown  up  and  matured, 
and  finished  in  their  perfect  independence.  Why  was  their 
condition  even  as  colonies,  so  much  above  that  of  Brasil 
or  Mexico ,  countries  towards  which  nature  had  been  per¬ 
haps  more  lavish  of  her  favours  ?  It  was  the  principles  of 
the  common  law  which  our  ancestors  brought  with  them, 
which  first  prompted  them  to  assert  their  independence, 
and  then  in  the  days  of  trial  and  of  strife,  moderated  the  fury 
of  revolution,  and  served  as  sure  and  solid  foundations  of 
future  security.  It  was  in  that  free  and  hallowed  volume 
which  served  as  their  palladium,  and  in  which  they  found 
written  the  first  lessons  of  their  independence.  It  was  the 
mild  spirit  of  the  common  law  that  tempered  the  evils  of 
civil  convulsion  and  calmed  the  agitated  waves,  and  finally 
shone  forth  with  renovated  lustre,  when  those  storms  had 
passed  away — that  common  law,  the  great  magazine  which, 
supplied  our  state  and  national  constitutions  with  abundant 
and  useful  materials  for  their  solid  structure. 

Mr.  Griffin  then  argued  upon  the  evidence,  and  admitted 
that  there  had  been  no  personal  violence,  no  outrage  or  dis¬ 
order,  but  asked  if  the  coercive  measures  of  the  society 
were  less  cruel  or  oppressive  for  that  reason.  He  made 
strong  remarks  upon  the  imperious  and  tyrannical  edicts  of 
the  constitution  and  by-laws  of  the  society,  and  asked 
whether  it  was  possible  for  any  workman  to  enjoy  without 
molestation,  the  indisputable  rights  of  peace,  neutrality,  and 
self-government,  in  his  own  private  and  particular  concerns. 
A  journeyman  was  neither  free  to  refuse  entering  into  the 
society,  nor  at  liberty,  having  done  so,  to  leave  it,  without 


161 


incurring  ruin  or  unmerited  disgrace ;  and  ta  the  real  im¬ 
poverishment  which  he  must  undergo,  and  to  the  evils 
heaped  upon  all  who  befriend  him ;  to  all  this  was  added, 
the  opprobrious  epithet  of  scab.  If  an  individual  master  re¬ 
fused  obedience  to  their  laws,  or  fell  under  the  displeasure 
of  the  society,  a  stroke  was  directed  against  him.  And, 
though  this  stroke  was  not  a  corporal  wound,  it  was  a  cruel 
and  ruinous  infliction,  from  which  he  could  have  no  re¬ 
lief,  unless  the  law  provides  one.  He  was  proscribed 
without  remorse,  and  outlawed  without  mercy. 

If  the  master  workmen  in  general  happened  to  offen. . 
this  society,  a  general  cessation  of  labour  amongst  the  mem¬ 
bers  of  their  own  body  was  decreed,  to  %vhich  obedience 
was  rigorously  enforced  ;  however  much  the  necessities 
of  their  families  might  require  their  work,  idleness  was 
enjoined  upon  them.  They  were  commanded  to  do  no 
manner  of  work  ;  but  it  was  a  sabbath  not  of  rest,  but  of 
vengeance,  of  desolation,  and  of  suffering.  Mr.  Griffin 
urged  then,  a  variety  of  other  topics  with  great  strength 
and  effect,  and  concluded  by  what  might  be  understood  as 
a  summary  of  his  argument.  He  did  not  complain  of  the 
defendants  for  forming  themselves  into  a  society,  but  for- 
compelling  others  to  become  members.  He  did  not  accuse 
them  of  having  advanced  the  price  of  their  own  labour,  but 
of  conspiring  to  regulate,  by  measures  of  rigour  and  coer¬ 
cion,  the  wages  and  the  will  of  others  ;  his  charge  against 
them  was  not  that  they  chose  and  determined  for  what  em¬ 
ployers  they  would  or  would  not  work,  but  that  they  had 
exercised  an  aristocratic  and  tyrannical  control  over  third 
persons,  to  whom  they  left  neither  free  will  nor  choice  ; 
and  that  they  employed,  to  effect  this  purpose,  means  of  in¬ 
terference  in  their  concerns  to  which  it  was  impossible  for 
the  sufferers  to  oppose  any  resistance. 

x 


162 


Mr.  Emmet  closed  the  prosecution.  Before  he  began, 
Mr.  Sampsoti  cited  a  passage  from  Reeves's  History  of  the 
Common  Law ,  to  show  that  besides  the  ordonnances  to  which 
he  had  adverted  all  to  be  found  in  Keble's  Statutes ,  there  was 
a  special  jurisdiction  and  particular  laws  touching  the  sta¬ 
ple  of  wool,  and  that  the  charge  of  conspiracy  against  the 
merchants  in  the  reign  of  Edward  III.  might  have  very 
possibly  been  for  an  infringement  of  that  code,  which  was 
called  the  law'  of  the  staple.  So  that  there  were  two  ways  of 
accounting  for  it,  viz.  by  the  general  statutes,  or  by  these 
particular  regulations,  in  neither  of  which  it  could  be  an 
argument  that  such  conspiracies  were  by  the  common  law. 
Mr.  S.  said  he  V'ould  go  no  higher  into  antiquity.  If  his 
learned  friend  chose  to  do  so,  he  might  now  mount  up  Ja¬ 
cob's  ladder,  of  w  hich  one  end  was  in  this  world  and  the 
other  in  the  world  above.  Mr.  S.  also  cited  a  certified 
opinion  of  Judge  Scott  of  Maryland ,  in  MS.  where  two 
cases  were  adjudged,  one  w'here  after  conviction  a  new- 
trial  was  refused,  and  another,  when  on  demurrer  to  evidence 
judgment  was  for  the  defendant — upon  this  distinction, 
that  where  the  party  said  to  be  injured  went  voluntarily 
into  the  society,  there  was  no  injury  done  him,  however 
it  might  be  if  he  was  compelled.  This,  he  said,  was  appli¬ 
cable  to  the  cases  of  Benjamin  and  Whitess ,  both  of  whom 
had  entered  voluntarily. 

Mr.  Emmet  declared  that  it  was  not  his  intention  to  ad¬ 
vert  on  this  occasion  to  a  single  law  case,  nor  to  open  one 
of  the  numerous  authorities  that  lay  upon  the  table,  because 
he  had  observed  with  what  pain  the  jury  had  endeavoured 
to  listen  to  the  elaborate  arguments  of  his  learned  adversa¬ 
ries,  whenever  they  turned  upon  abstruse  deductions  from 
the  antiquities  of  the  law.  He  neither  blamed  the  counsel 
nor  the  jury  in  this  respect ;  both  had  tried  to  do  their  duty, 


\ 


I 


163 


and  he  could  not  withhold  his  admiration  of  the  research 
and  ingenuity  of  his  friend,  who  had  shown  such  force  of 
learning  and  industiy.  But  it  was  plain  that  it  was  but  la¬ 
bour  in  vain  ;  for  it  never  could  be  expected  from  the 
most  intelligent  jurors  that  ever  were  empannelled,  that 
they  should,  in  the  accidental  discharge  of  a  duty  for  which 
they  had  no  previous  course  of  preparation,  follow  the 
ablest  and  clearest  logician  through  a  range  of  argument 
which  it  must  have  cost  a  practised  and  educated  lawyer  so 
much  time  and  trouble  to  compose.  It  was  what  never 
was  required  of  any  jury,  and  it  was  not  within  their  pro¬ 
vince,  nor  were  they  the  worse  jurors  for  not  being  deep 
read  lawyers.  The  constitution  had  appointed  two  distinct 
offices.  Judges  had  to  determine  questions  of  law,  and 
jurors  to  decide  upon  questions  of  fact  ;  and  although  the 
jury  in  criminal  cases  had  the  undoubted  power,  when  they 
chose  to  exert  it,  of  deciding  upon  law  and  fact,  yet  that 
was  a  right  or  power  which  a  discreet  jury  would  never 
assert  but  in  cases  where  the  strongest  exigencies  required 
them  to  do  so.  There  were  indeed  occasions  when  import¬ 
ant  public  principles  were  in  jeopardy,  when  it  might  be 
used  as  a  saving  and  salutary  privilege  ;  but  nothing  less 
than  such  occasions  would  warrant  a  jury  to  pronounce  up¬ 
on  what  no  understanding,  by  the  simple  force  of  common 
sense,  could  be  equal  to.-  The  certainty  of  the  criminal 
law  is  as  important  as  that  of  the  civil,  and  that  can  only 
be  preserved  by  leaving  it  to  be  expounded  by  judges,  to 
whom  education  and  habit  have  rendered  it  familiar  ;  and 
who  join  knowledge  of  its  theory  to  the  aptitude  which 
practice  gives.  Discreet  jurors  know  that  no  science  is  in¬ 
tuitive,  and  that  law,  which  comprehends  the  rules  of  alt 

\ 

men’s  actions,  can  never  from  its  nature  be  so  simple,  as 


164 


that  some  difficulties  must  not  at  times  ^rise  in  the  exposi¬ 
tion  of  it.  When  they  do,  it  is  impossible  to  lay  down  the 
rule,  but  from  a  knowledge  of  what  has  been  established 
by  usage  or  by  statute,  and  to  do  so  safely,  a  knowledge  of 
causes  and  consequences,  which  practice  only  gives,  is  es¬ 
sential.  As  well  might  a  lawyer  think  himself  qualified 
without  any  previous  education,  to  be  a  merchant,  a  farmer, 
or  an  artist,  as  any  of  those  to  be  a  lawyer.  And  this 
plainly  appeared  to  me  in  the  course  of  the  summing  up  on 
the  other  side.  Where  it  turned  upon  the  facts  in  evidence, 
I  saw  the  jury  giving  an  attentive  ear  ;  where  it  was  gene¬ 
ral  reasoning  I  could  mark  them  listening  with  patience  •; 
where  it  was  humour  and  fancy,  I  saw  the  pleasure  they 
received,  and  I  joined  in  it,  for  wit  and  vivacity  will  always 
captivate  and  please.  But  when  that  laboured  chain  of  in¬ 
duction  which  did  credit  to  the  industry  and  reasoning  pow¬ 
ers  of  my  learned  friend  was  offered  to  the  jury-box,  I 
could  discern  in  their  individual  countenances,  the  truth 
of  that  sentence  which  says,  “  to  questions  of  law  jurors 
are  not  to  answer.” 

One  observation,  however,  touching  the  strictures  pass¬ 
ed  upon  the  absurd  antiquities  of  the  common  law ;  and  I 
am  far  from  denying  the  barbarity  of  its  origin,  and  that  it 
originated  in  dark  and  ignorant  times.  It  is  this  :  that  its 
course  has  been  marked  writh  progressive  improvement, 
which  alone  is  eulogium  and  security  enough.  Mr. 
Emmet  then  passed  to  the  constitution  of  the  society,  and 
dwelt  with  his  usual  force  upon  several  of  its  provisions, 
which  he  represented  as  arbitrary  and  tyrannical,  and  going 
to  erect  an  imperium  in  imperio ,  and  overbear  the  rights  of 
the  citizen,  and  the  law  of  the  land. 

"  He  took  advantage  of  the  hardship  of  Briton's  case,  and 
drew  a  lively  and  pathetic  picture  of  the  sufferings  of  an 


> 


365 


inoffensive  old  man,  and  of  the  cruelty  of  exacting  from  his 
employer,  the  hard  sacrifice  of  his  abandonment,  at  the 
peril  of  his  own  destruction.  He  said  he  was  not  the  ad¬ 
vocate  of  any  oppression,  and  if  the  masters  had  combined 
for  any  purpose  of  oppression,  or  in  any  shape  against  law, 
he  would  wish  as  much  as  any  man  that  they  should  be  in¬ 
dicted  and  convicted. 

His  address  was  such  as  the  reporter  would  willingly 
lay  before  the  public,  did  the  limits  prescribed  to  him  ad¬ 
mit  of  it ;  but  the  same  reasons  for  which  the  speeches 
of  the  other  counsel  have  been  abridged,  must  serve  as  his 
apology. 

The  charge  of  the  court  was  then  delivered  by  his 
honour  the  Mayor ,  to  the  following  effect : 

He  observed  there  were  two  points  of  view  in  which  the 
offence  of  a  conspiracy  might  be  considered  ;  the  one  where 
there  existed  a  combination  to  do  an  act,  unlawful  in  it¬ 
self,  to  the  prejudice  of  other  persons ;  the  other  where 
the  act  done,  or  the  object  of  it,  was  not  unlawful,  but  un¬ 
lawful  means  were  used  to  accomplish  it.  As  to  the  first, 
there  could  be  no  doubt  that  a  combination  to  do  an  unlaw¬ 
ful  act  was  a  conspiracy.  The  second  depended  on  the 
common  principle,  that  the  goodness  of  the  end  would  not 
justify  improper  means  to  obtain  it.  If,  therefore,  in  the 
present  case,  the  defendants  had  confederated  either  to  do 
an  unlawful  act,  to  the  injury  of  others,  or  to  make  use  of 
unlawful  means  to  obtain  their  ends,  they  would  be  liable 
to  the  charge  of  a  conspiracy.  He  observed,  that  the 
court  did  not  mean  to  say,  nor  did  the  facts  in  the  case 
require  them  to  decide,  whether  an  agreement  not  to  work, 
except  for  certain  wages,  would  amount  to  this  offence, 
without  any  unlawful  means  taken  to  enforce  it. 


166 


Much  has  been  said  as  to  the  application  of  the  com¬ 
mon  law  of  England  to  the  case.  The  absurdities  of  the  j 
ancient  common  law,  and  also  of  the  statute  law  of  En¬ 
gland ,  had  been  exhibited  in  the  strongest  light.  It  was 
well  known,  that  many  of  the  ancient  rules  of  the  common 
law  on  this  and  other  subjects  had  been  exploded  or  be¬ 
come  obsolete,  and  that  little  of  the  mass  of  absurdities 
complained  of  by  the  defendants’  counsel,  remained  in 
force  even  in  England.  In  this  state  the  court  could 
not  be  at  a  loss  in  deciding  how  far  the  common  law 
of  England  was  applicable.  Our  immediate  ancestors 
claimed  it  as  their  birthright.  They  considered  it  as  se¬ 
curing  to  them  many  of  their  highest  privileges,  and  they 
often  appealed  to  that  law  in  support  of  their  rights,  and 
against  the  arbitrary  extension  of  power  by  the  British 
parliament.  The  constitution  of  this  state  had  also  ex¬ 
pressly  adopted  it,  and  declared,  that  such  parts  of  the 
common  law  of  England ,  and  the  statute  law  of  England 
and  Great  Britain ,  and  of  the  acts  of  the  legislature  of  the 
colony  of  New-Tork ,  as  together  did  form  the  law  of  said 
colony  on  the  19th  April ,  1775,  and  not  repugnant  to  the 
constitution,  should  be  and  continue  the  law  of  this  state, 
subject  to  such  alterations  and  provisions  as  the  legisla¬ 
ture  of  this  state  should  from  time  to  time  mak^  concern¬ 
ing  the  same,  &c.  No  alteration  having  been  made  by 
our  constitution  or  laws,  the  common  law  of  England ,  as 
it  existed  at  the  period  last  mentioned,  must  be  deemed 
to  be  applicable,  and  by  that  law  the  principles  already 
stated  appeared  to  be  well  established.  No  precedents,  it 
was  true,  of  convictions  or  judgments  upon  them  had 
been  produced  from  our  own  courts',  but  no  strong  in¬ 
ference  could  be  drawn  from  that,  as  until  lately  such  pre¬ 
cedents  had  not  been  preserved,  and  no  printed  reports  of 
adjudged  cases  had  been  published. 


167 


The  injury  produced  by  unlawful  combinations  might 
affect  any  person  or  number  of  persons,  as  in  the  present 
case  the  master  workmen,  or  the  fellow  journeymen  of  the 
defendants,  or  any*  other  individuals.  It  appeared  in  evi¬ 
dence,  that  the  society  of  journeymen,  of  which  the  de¬ 
fendants  were  members,  had  established  a  constitution,  or 
certain  rules  for  its  government,  to  which  the  defendants 
had  assented,  and  which  they  had  endeavoured  to  enforce. 
These  rules  were  made  to  operate  on  all  the  members  of 
•the  society,  on  others  of  their  trade  who  were  not  mem¬ 
bers,  and  through  them  on  the  master  workmen,  and  all 
were  coerced^to  submit,  or  else  the  members  of  the  society 
which  comprehended  the  best  workmen  in  the  city,  were 
to  stop  the  work  of  their  employers.  One  of  the  regula¬ 
tions  even  required  that  everyr  person  of  their  trade,  whom 
they  thought  worthy  of  notice,  should  become  a  member 
of  the  society,  and  of  course  become  subject  to  its  rules, 
and  in  case  of  neglect  or  refusal,  it  imposed  fines  on  the 
person  guilty  of  disobedience.  When  the  society  deter¬ 
mined  on  any  measure,  it  found  no  difficulty  in  carrying 
it  into  execution.  If  its  ordinary  functions  failed,  it  en¬ 
forced  obedience  by  decreeing  what  was  called  a  strike 
against  a  particular  shop  that  had  transgressed,  or  a  ge¬ 
neral  turn  out  against  all  the  shops  in  the  city,  terms  which 
had  been  explained  by  the  witnesses,  and  were  sufficiently 
understood.  These  steps  were  generally  decisive,  and  com¬ 
pelled  submission  in  all  concerned. 

Whatever  might  be  the  motives  of  the  defendants,  or 
their  object,  the  means  thus  employed  were  arbitrary  and 
unlawful,  and  their  having  been  directed  against  several 
individuals  in  the  present  case,  it  was  brought,  in  the  opi¬ 
nion  of  the  Court,  within  one  of  the  descriptions  of  the 
offence  which  had  been  given. 


168 


The  jury  retired,  and  shortly  after  returned  a  verdict 
against  the  defendants. 

The  sentence  was  then  passed  by  his  honour  the  Mayor , 
who  observed  to  the  defendants,  that  the  novelty  of  the 
case,  and  the  general  conduct  of  their  body,  composed 
of  members  useful  in  the  community,  inclined  the  court  to 
believe  that  they  had  erred  from  a  mistake  of  the  law,  and 
from  supposing  that  they  had  rights  upon  which  to  found 
their  proceedings.  That  they  had  equal  rights  with  all  other 
members  of  the  community  was  undoubted,  and  they  had 
also  the  right  to  meet  and  regulate  their  concerns,  and  to 
ask  for  wages,  and  to  work  or  refuse  ;  but  that  the  means 
they  used  were  of  a  nature  too  arbitrary  and  coercive,  and 
which  went  to  deprive  their  fellow-citizens  of  rights  as 
precious  as  any  they  contended  for.  That  the  present  ob¬ 
ject  of  the  court  was  rather  to  admonish  than  to  punish  ; 
but  an  adjudication  upon  the  subject  being  now  solemnly 
had,  it  was  recommended  to  them,  so  to  alter  and  modify 
their  rules  and  their  conduct,  as  not  to  incur  in  future  the 
penalties  of  the  law. 

They  were  fined  each  one  dollar ,  with  the  costs. 


